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[1987]

713
1 I.R.
Raymond Crotty Plaintiff v. An Taoiseach and Others, Defendants
[1986 No. 12036P]
24th December 1986
12th February 1987
High Court 18th February 1987
9th April 1987

Constitution - International relations - Executive power- Government - State sovereignty -Derivation of powers of
government- Requirements of the common good - People - Treatybinding upon State - Single European Act - Title
III - European Political Cooperation -Foreign policy referrable to common position adopted by High Contracting
Parties -Whether sovereignty fettered - Whether executive powers alienated - Government - Ratification- Scheme
of constitutional powers - Breach of Constitution - Judicial review - Whetherratification proposed by Government
amenable to judicial review - Constitution of Ireland,1937, Articles 1, 5, 6, 28 and 29.Constitution - Statute -
Validity - European Communities - Accession - Amendment ofConstitution - Licence - Scope - Treaties
establishing European Communities - Objectives -Amendment of Treaties - Whether amendment of Treaties
authorised by original licence foraccession - Single European Act - European Communities Act, 1972 (No. 27) -
EuropeanCommunities (Amendment) Act, 1986 (No. 37) - Constitution of Ireland, 1937, Article 29,s. 4, sub-s.
3.Constitution - Locus standi - Treaty - Not part of domestic law - Constitutional infringementalleged - Plaintiff
suffering no injury - Ratification - Reliefs - Declaration and injunction -Whether plaintiff entitled to challenge
treaty ratification in absence of injury - Whetherexceptional circumstances established - Single European
Act.Injunction - Interlocutory relief - Breach of Constitution - Presumption - Whether fair questionof law to be
tried - Balance of convenience - Treaty - Ratification - Effect - Status quo -Preservation - Whether injunction
necessary to preserve constitutional status quo - Exceptionalconsiderations.
Article 29, s. 4, sub-s. 3 of the Constitution states:—
"3 The State may become a member of the European Coal and Steel Community (established by Treaty
signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty
signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established
by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates
laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of
the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or
institutions thereof, from having the force of law in the State."
By treaties made at Luxembourg on the 17th February, 1986, and The Hague on the 28th February, 1986, and known
collectively as the Single European Act ("the SEA") the twelve Member States resolved to amend and in general expand
the scope of the treaties of and governing the European Communities. Article 33 of the SEA provided:—
"1. This Act will be ratified by the High Contracting Parties in accordance with their respective
constitutional requirements. The instruments of ratification will be deposited with the Government of the
Italian Republic.
2. This Act will enter into force on the first day of the month following that in which the instrument of
ratification is deposited of the last Signatory State to fulfil that formality."
Title III of the SEA embodied a separate treaty whereby each of the High Contracting

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Parties agreed to adopt its foreign policy positions to those of the others and refrain from impeding a consensus
and joint action within a structured framework known as European Political Cooperation. Title II embodied
structural changes to the treaties of and governing the European Communities and, in the case of the European
Economic Community, provided for increased use of voting by qualified majority in the European Council; the
enumeration of detailed objectives of the European Economic Community; and a new court of first instance
inferior to the Court of Justice of the European Communities. By the European Communities (Amendment) Act,
1986, most of the provisions of the SEA, with the exception inter alia of Title III, were inserted into the
European Communities Act, 1972, whereby they became part of the domestic law of the State. Section 3, sub-s.
3 of the Act of 1986 provided that the Act should come into operation on such date as the Minister for Foreign
Affairs appointed, although the Act itself was enacted on the 23rd December, 1986.
The plaintiff issued a plenary summons on the 22nd December, 1986 seeking essentially declarations that any
purported ratification of the SEA would be void having regard to the provisions of the Constitution and injunctions
restraining such ratification. In addition he sought a declaration that the European Communities (Amendment) Bill, 1986
(enacted the following day) would, if enacted, be repugnant to the Constitution and null and void in purporting to enact
certain parts of the SEA into domestic law. Upon a hearing for interlocutory injunctions it was contended by the defendants
that there was no fair question of law raised for trial on the issues and objected that the plaintiff lacked locus standi for
interlocutory relief and that his application amounted to an abuse of the process of the court.
Held by Barrington J., in granting the interlocutory injunctions, that the plaintiff had raised a fair question of law to be
tried on the issues for which there were weighty and countervailing considerations justifying a departure from the received
rule of practice regardinglocus standi and in addition the plaintiff had standing to the extent that he claimed that the
Constitution itself was being amended in the absence of the consultation by referendum with the plaintiff and the electorate
specifically provided by the Constitution.
Campus Oil Ltd. v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 and Cahill v.Sutton [1980] I.R. 269
considered.
Upon full hearing on the substantive issues, it was
Held by the High Court (Hamilton P., Barrington and Carroll JJ.) in refusing the reliefs sought and discharging the
interlocutory injunctions, 1, that those parts of the SEA enacted into domestic law by the European Communities
(Amendment) Act, 1986, were within the scope of the constitutional licence for accession to the European Communities
granted by the Third Amendment to the Constitution and embodied in Article 29, s. 4, sub-s. 3 thereof.
2. The plaintiff lacked the required locus standi to challenge the remainder of the SEA, being Title III, as it had not
been incorporated into domestic law and he was unable to show any special injury or infringement of his rights.
Cahill v. Sutton [1980] I.R. 269 applied.
Per Curiam: That the acts of the Government are entitled to a presumption of Constitutional validity, in the same way
as legislation passed by the Oireachtas.
The plaintiff appealed to the Supreme Court from the judgment and order of the High Court and then obtained in the
Supreme Court similar interim and interlocutory injunctions pending the hearing of the appeal.
On the issue of the constitutionality of the European Communities (Amendment) Act, 1986, it was
Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Griffin and Hederman JJ.), in refusing to declare the Act
invalid having regard to the provisions of the Constitution, 1, that the plaintiff had locus standi to challenge the Act in the
particular circumstances where its coming into force would affect every citizen notwithstanding the plaintiff's failure to
prove the threat of any special injury or prejudice peculiar to him arising from the Act.
Principles in Cahill v. Sutton [1980] I.R. 269 considered.
2. That so much of the SEA which was to become law by the Act of 1986 was properly within the constitutional
licence of Article 29, s. 4, sub-s. 3, which authorised the State's accession to a living, dynamic Community, and the
proposed changes to qualified voting in the European Council had already been anticipated in the establishing Treaties after
the transitional period; the allegedly new objectives of the SEA brought into Irish law amounted to no more than a more
specific enumeration of the objectives of the establishing Treaties; and the proposed new court of first instance did not in
any way extend the primacy of the Court of

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1 I.R. H.C.
Justice of the European Communities over the Irish courts beyond that already authorised by Article 29, s. 4,
sub-s. 3 of the Constitution.
On the issue of Title III, being the treaty whereby Ireland agreed to adopt its foreign policy positions within the
framework of European Political Cooperation, not being part of the domestic law incorporated by the Act of 1986, it was
Held by the Supreme Court (Walsh, Henchy and Hederman JJ.; Finlay C.J. and Griffin J. dissenting), in allowing the
appeal and declaring the ratification of Title III unconstitutional, 1, (Finlay C.J. and Griffin J. concurring) that the
Constitution vested in the Government the executive power of the State in its external relations, subject to the provisions of
the Constitution, and the Government's conduct of foreign policy was beyond the purview of the courts.
Boland v. An Taoiseach [1974] I.R. 338 followed.
2. That where, however, in its conduct of foreign policy the Government purported to alienate any powers of
government or fetter the sovereignty of the State, then the Government acted beyond the powers entrusted by the
Constitution to it, and the courts, as sole arbiters upon breaches of constitutional restraints, were obliged to restrain the
Government from so acting.
3. That since Title III of the SEA would bind the State to concede part of its sovereignty in its relations with other
states and to conduct foreign policy without regard to the requirements of the common good, the ratification proposed by
the Government was impermissible in the absence of authorisation by the Constitution.
Per Finlay C.J. and Griffin J., dissenting: Title III did not oblige the State to cede any sovereignty in its foreign policy.
The courts would have a right and duty to intervene only where the Government's conduct of foreign relations constituted
an actual or threatened invasion of the constitutional rights of the citizen.
Cases mentioned in this report:—
Finn v. Attorney General [1983] I.R. 154.
Acciaierie San Michele SpA v. High Authority (Cases 9/65 and 58/65) [1967] E.C.R. 1.
Cahill v. Sutton [1980] I.R. 269.
O'Brien v. Keogh [1972] I.R. 144.
Norris v. Attorney General [1984] I.R. 36.
Boland v. An Taoiseach [1974] I.R. 338; (1974) 109 I.L.T.R. 13.
Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88; [1984] I.L.R.M. 45.
The State (Gilliland) v. Governor of Mountjoy Prison [1987] I.R. 201; [1987] I.L.R.M. 278.
Commission v. Council: Re ERTA (Case 22/70) [1971] E.C.R. 282.
Marbury v. Madison 1 Cr. (5 U.S.) 137 (1803).
The State (Quinn) v. Ryan [1965] I.R. 70; (1964) 100 I.L.T.R. 105.
The Electoral (Amendment) Bill, 1983 [1984] I.R. 268; [1984] I.L.R.M. 539.
The Emergency Powers Bill, 1976 [1977] I.R. 159; (1976) 111 I.L.T.R. 29.
Byrne v. Ireland [1972] I.R. 241.
Campus Oil v. Minister for Industry and Energy (No. 1) [1983] I.R. 82; [1983] I.L.R.M. 258.
In re Ó Laighléis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.
Buckley & Others (Sinn Féin) v. Attorney General [1950] I.R. 67.
King v. Attorney General [1981] I.R. 233.

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1 I.R. H.C.

The State (Lynch) v. Cooney [1982] I.R. 337; [1982] I.L.R.M. 190; [1983] I.L.R.M. 89.
The State (Kerry County Council) v. Minister for Local Government [1933] I.R. 517.
J. Nold KG v. Commission (Case 4/73) [1974] E.C.R. 491; [1974] 2 C.M.L.R. 338.
Amministrazione delle Finanze dello Stato v. Simmenthal SpA (Case 106/77) [1978] E.C.R. 629; [1978] 3
C.M.L.R. 263.
Leonesio v. Ministero dell' Agricoltura (Case 93/71) [1972] E.C.R. 287; [1973] C.M.L.R. 343.
Stauder v. City of Ulm (Case 29/69) [1969] E.C.R. 419; [1970] C.M.L.R. 112.
Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle Getreide (Case 11/70) [1970] E.C.R.
1125; [1972] C.M.L.R. 255.
Van Gend en Loos v. Nederlandse Belastingadministratie (Case 26/62) [1963] E.C.R. 1; [1963] C.M.L.R.
105.
Italy v. Watson and Belmann (Case 118/75) [1976] E.C.R. 1185; [1976] 2 C.M.L.R. 552.
Rutili v. Ministre de l'Interieur (Case 36/75) [1975] E.C.R. 1219; [1976] 1 C.M.L.R. 140.
Belgium v. Royer (Case 48/75) [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619.
Marckx v. Belgium (1979) 2 E.H.R.R. 330.
Johnston v. Ireland (1982) 8 E.H.R.R. 214.
Commission v. Ireland (Case 151/81) [1982] 4 E.C.R. 3573.
Marshall v. Southampton Health Authority (Case 152/84) [1986] E.C.R. 723; [1986] 1 C.M.L.R. 688;
[1986] Q.B. 401; [1986] 2 W.L.R. 780; [1986] 2 All E.R. 584.
Costa v. E.N.E.L. (Case 6/64) [1964] E.C.R. 585; [1964] C.M.L.R. 425.
B.R.T. v. SABAM (Case 127A/73) [1974] E.C.R. 313; [1974] 2 C.M.L.R. 238.
Commission v. United Kingdom: Re Tachographs (Case 128/78) [1979] E.C.R. 419; [1979] 2 C.M.L.R. 45.
Hauptzollamt Bremerhaven v. Massey-Ferguson GmbH (Case 8/73) [1973] E.C.R. 897.
Reyners v. Belgium (Case 2/74) [1974] E.C.R. 631; [1974] 2 C.M.L.R. 305.
Ministere Public v. Van Wesemael (Case 110/78) [1979] E.C.R. 35; [1979] 3 C.M.L.R. 87.
Van Duyn v. Home Office (Case 41/74) [1974] E.C.R. 1337; [1975] 1 C.M.L.R. 1; [1975] Ch. 358; [1975]
2 W.L.R. 760; [1975] 3 All E.R. 190.

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Reg. v. Henn (Case 34/79) [1979] E.C.R. 3795; [1980] 1 C.M.L.R. 246; [1981] A.C. 850; [1980] 2 W.L.R.
597; [1980] 2 All E.R. 166.
Conegate Ltd. v. Customs and Excise Commissioners (Case 121/85) [1986] E.C.R. 1007; [1986] 1
C.M.L.R. 739; [1987] Q.B. 254; [1987] 2 W.L.R. 39; [1986] 2 All E.R. 688.
Adoui v. Belgium (Case 115/81) [1982] E.C.R. 1665; [1982] 3 C.M.L.R. 631.
Walrave and Koch v. AUCI (Case 36/74) [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320.
Commission v. Italy: Re Export Tax on Art Treasures (No. 2) (Case 48/71) [1972] E.C.R. 527; [1972]
C.M.L.R. 699.
Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon Case) (Case 120/78)
[1979] E.C.R. 649; [1979] 3 C.M.L.R. 494.
Algera v. Common Assembly (Case 7/56) [1957-58] E.C.R. 39.
Wilhelm Werhahn Hansamuhle v. Council (Case 63/72) [1973] E.C.R. 1229.
Commission v. Ireland: Re "Buy Irish" Campaign (Case 249/81) [1982] E.C.R. 4005; [1983] 2 C.M.L.R.
104.
Commission v. Ireland: Re Sea Fisheries Restrictions Case (Case 61/77) [1978] E.C.R. 417; [1978] 2
C.M.L.R. 466.
Commission v. Italy (Case 91/79) [1980] E.C.R. 1099.
Thieffry v. Counseil de l'Ordre des Avocats (Case 71/76) [1977] E.C.R. 765; [1977] 2 C.M.L.R. 373.
GB-Inno-BM NV v. Vereniging van de Kleinhandelaars in Tabak (Case 13/77) [1977] E.C.R. 2115; [1978]
2 C.M.L.R. 283.
Procureur du Roi v. Dassonville (Case 8/74) [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436.
Reg. v. Bouchereau (Case 30/77) [1977] E.C.R. 1999; [1977] 2 C.M.L.R. 800; [1978] Q.B. 732; [1978] 2
W.L.R. 250; [1981] 2 All E.R. 924.
Balkan-Import-Export GmbH v. Hauptzollamt Berlin-Packhof (Case 5/73) [1973] E.C.R. 1091.
Humblet v. Belgium (Case 6/60) [1960] E.C.R. 559.
Thomas v. Collins (1944) 323 U.S. 516.
Paton v. B.P.A.S. Trustees [1979] Q.B. 276; [1978] 3 W.L.R. 687; [1978] 2 All E.R. 987.
Paton v. United Kingdom (1980) 3 E.H.R.R. 408.
Reg. v. H.M. Treasury, Ex p. Smedley [1985] Q.B. 657; [1985] 2 W.L.R. 576; [1985] 1 All E.R. 589.
Bruggemann and Scheuten v. Germany (1977) 3 E.H.R.R. 244.
Hauer v. Land Rheinland-Pfalz (Case 44/79) [1979] E.C.R. 3727; [1980] 3 C.M.L.R. 42; (1979) 3
E.H.R.R. 140.

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X. v. Norway (1961) Ybk. of Eur. Conv. on H.R. 270.


Kjeldsen v. Denmark (1976) 1 E.H.R.R. 711.
Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149.
Hadmor Productions Ltd. v. Hamilton & Others [1983] 1 A.C. 191; [1982] 2 W.L.R. 322; [1982] 1 All E.R.
1042.
Gouriet v. Union of Post Office Workers [1978] A.C. 435; [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70.
Church of Scientology of California v. Customs and Excise Commissioners [1980] 3 C.M.L.R. 114; [1981]
1 All E.R. 1035.
Glover v. B.L.N. [1973] I.R. 388.
Wavin Irish Pipes Ltd. v. Hepworth Iron Co. (Unreported, High Court, Costello J., 8th May, 1981).

Plenary Summons.
Raymond Crotty, a citizen of Ireland, issued a plenary summons dated 22nd December, 1986, against the
following defendants:— An Taoiseach, An Tánaiste, The Minister for Foreign Affairs, The Minister for
Tourism, Fisheries and Forestry, The Minister for Finance, The Minister for Education, The Minister for the
Environment, The Minister for Defence and for the Gaeltacht, The Minister for Communications, The Minister
for Justice, The Minister for Health, The Minister for Agriculture, The Minister for Industry and Commerce,
The Minister for Social Welfare, The Minister for Labour and the Public Service, and also against Ireland and
the Attorney General.
By his general indorsement of claim, the plaintiff sought declarations that the Government would be in
breach of the Constitution if it ratified the Single European Act, and injunctions restraining the Government
from depositing the instrument of ratification to the Single European Act with the Government of the Italian
Republic. The general indorsement of claim further sought declarations that the European Communities
(Amendment) Bill, 1986, would, if enacted by the Oireachtas, be repugnant to the provisions of the Constitution
and null and void, in purporting to make parts of the Single European Act part of the domestic law of the State,
and declarations that ratification of the Single European Act would be in breach of the Constitution in the
absence of proper amendment of the Constitution by referendum. The plaintiff then proceeded ex parte on the
same day before the High Court (Barrington J.) with affidavits of Raymond Crotty, Brendan O'Connor and
Joseph Noonan and obtained an order abridging time for service upon the defendants of a notice of motion
claiming interlocutory reliefs, which motion was returnable for the following day, being the 23rd December,
1986. The interlocutory hearing was held at the home of Barrington J. on 23rd and 24th December, 1986.

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The European Communities (Amendment) Act, 1986 (No. 37) provides as follows:—
"1. —The European Communities Act, 1972, is hereby amended by the insertion, in the definition of "the
treaties governing the European Communities" in section 1 (1) after paragraph (n) (inserted by the
European Communities (Amendment) (No. 2) Act, 1985), of the following paragraph:—
and
(o) the following provisions of the Single European Act (done at Luxembourg on the 17th day of
February, 1986, and at The Hague on the 28th day of February, 1986), namely, Article 3.1; Title II;
Articles 31 and 32; and, in so far as they relate to the said Article 3.1, the said Title II and the said
Articles 31 and 32, Articles 33 and 34."
2. —References to the Assembly of the European Communities in any Act passed or statutory instrument
made before the commencement of this Act shall be construed as references to the European Parliament.
3.—(1) This Act may be cited as the European Communities (Amendment) Act, 1986.
(2) The European Communities Acts, 1972 to 1985, and this Act may be cited together as the
European Communities Acts, 1972 to 1986, and shall be construed together as one Act.
(3) This Act shall come into operation on such date as the Minister for Foreign Affairs appoints by
order."
Title III of the Single European Act provides as follows:—
Provisions on European cooperation in the sphere of foreign policy
Article 30
European Cooperation in the sphere of foreign policy shall be governed by the following provisions:—
1. The High Contracting Parties, being members of the European Communities, shall endeavour jointly to
formulate and implement a European foreign policy.
2.(a) The High Contracting Parties undertake to inform and consult each other on any foreign policy
matters of general interest so as to ensure that their combined influence is exercised as effectively
as possible through coordination, the convergence of their positions and the implementation of
joint action.
(b) Consultations shall take place before the High Contracting Parties decide on their final position.
(c) In adopting its positions and in its national measures each High Contracting Party shall take full
account of the positions of the

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other partners and shall give due consideration to the desirability of adopting and implementing common
European positions.
In order to increase their capacity for joint action in the foreign policy field, the High Contracting
Parties shall ensure that common principles and objectives are gradually developed and defined.
The determination of common positions shall constitute a point of reference for the policies of the
High Contracting Parties.
(d) The High Contracting Parties shall endeavour to avoid any action or position which impairs their
effectiveness as a cohesive force in international relations or within international organizations.
3.(a) The Ministers for Foreign Affairs and a member of the Commission shall meet at least four times
a year within the framework of European Politicial Cooperation. They may also discuss foreign
policy matters within the framework of Political Cooperation on the occasion of meetings of the
Council of the European Communities.
(b) The Commission shall be fully associated with the proceedings of Political Cooperation.
(c) In order to ensure the swift adoption of common positions and the implementation of joint action,
the High Contracting Parties shall, as far as possible, refrain from impeding the formation of a
consensus and the joint action which this could produce.
4. The High Contracting Parties shall ensure that the European Parliament is closely associated with
European Political Cooperation. To that end the Presidency shall regularly inform the European Parliament of
the foreign policy issues which are being examined within the framework of Political Cooperation and shall
ensure that the views of the European Parliament are duly taken into consideration.
5. The external policies of the European Community and the policies agreed in European Political
Cooperation must be consistent.
The Presidency and the Commission, each within its own sphere of competence, shall have special
responsibility for ensuring that such consistency is sought and maintained.
6.(a) The High Contracting Parties consider that closer cooperation on questions of European security
would contribute in an essential way to the development of a European identity in external policy
matters. They are ready to coordinate their positions more closely on the political and economic
aspects of security.
(b) The High Contracting Parties are determined to maintain the technological and industrial conditions
necessary for their security. They shall work to that end both at national level and, where

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appropriate, within the framework of the competent institutions and bodies.
(c) Nothing in this Title shall impede closer cooperation in the field of security between certain of the High
Contracting Parties within the framework of the Western European Union or the Atlantic Alliance.
7.(a) In international institutions and at international conferences which they attend, the High Contracting
Parties shall endeavour to adopt common positions on the subjects covered by this Title.
(b) In international institutions and at international conferences in which not all the High Contracting
Parties participate, those who do participate shall take full account of positions agreed in European
Political Cooperation.
8. The High Contracting Parties shall organize a political dialogue with third countries and regional
groupings whenever they deem it necessary.
9. The High Contracting Parties and the Commission, through mutual assistance and information, shall
intensify cooperation between their representations accredited to third countries and to international
organizations.
10.(a) The Presidency of European Political Cooperation shall be held by the High Contracting Party
which holds the Presidency of the Council of the European Communities.
(b) The Presidency shall be responsible for initiating action and coordinating and representing the positions
of the Member States in relations with third countries in respect of European Political Cooperation
activities. It shall also be responsible for the management of Political Cooperation and in particular for
drawing up the timetable of meetings and for convening and organizing meetings.
(c) The Political Directors shall meet regularly in the Political Committee in order to give the necessary
impetus, maintain the continuity of European Political Cooperation and prepare Ministers' discussions.
(d) The Political Committee or, if necessary, a ministerial meeting shall convene within forty-eight hours at
the request of at least three Member States.
(e) The European Correspondents' Group shall be responsible, under the direction of the Political
Committee, for monitoring the implementation of European Political Cooperation and for studying
general organizational problems.
(f) Working groups shall meet as directed by the Political Committee.

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(g) A Secretariat based in Brussels shall assist the Presidency in preparing and implementing the activities
of European Political Cooperation and in administrative matters. It shall carry out its duties under the
authority of the Presidency.
11. As regards privileges and immunities, the members of the European Political Cooperation Secretariat
shall be treated in the same way as members of the diplomatic missions of the High Contracting Parties based in
the same place as the Secretariat.
12. Five years after the entry into force of this Act the High Contracting Parties shall examine whether any
revision of Title III is required.
Paul Callan S.C. (with him Antonia O'Callaghan and Seamus Ó Tuathail ó tuathail ) for the plaintiff
referred to Finn v. Attorney General ; Acciaierie San Michele SpA v. High Authority ; and Kelly: The Irish
Constitution, Second Edition at pp. 66 and 280, and referred to Articles 15 and 16 of the Vienna Convention on
the Law of Treaties; Cahill v. Sutton ; O'Brien v.Keogh and Norris v. Attorney General .
Eoghan Fitzsimons S.C. (with him James O'Reilly ) for the defendants referred to Boland v. An Taoiseach .
It has been held that the Government in the performance of its executive functions has the right to do so without
its activities being judicially reviewed. When the Government is negotiating on behalf of the State, the courts
will not interfere to examine the executive function. Only when the instrument of ratification has ben sealed by
the President and then deposited in Rome will Ireland be bound. Until then, there is not before the Court a
completed act of state in external policy. In the meantime, the presumption of constitutionality must apply:
Cahill v.Sutton . The plaintiff's interest must be shown and must be adversely affected or in imminent danger of
such. He cannot transfer his political opposition from the Oireachtas to the courts. The only constitutional right
which appears to be asserted is the right to vote in a referendum, for which the Oireachtas has the right of
initiative and the citizen may only vote when that initiative has been exercised.
Barrington J.: Isn't there an implied right not to have the Constitution amended?
Eoghan Fitzsimons S.C.: Yes, but there is no interest shown by the plaintiff, and it is an abuse of the judicial
process. The plaintiff has been

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forum-shopping. He then referred to the Republic of Ireland Act, 1949. This gives the President the functions to
act in connection with external relations upon the advice of the Government. Only the most serious treaties are
executed by the head of state. Contrary to what Mr. Callan suggests, the presumption of constitutionality
operates in favour of treaties to be executed by the head of state, although the particular point does not appear to
have been decided yet. There is no jurisdiction to review the constitutionality of a Bill and no power to interfere
with the legislative process, and similarly the courts have no jurisdiction to construe or review the
constitutionality of a treaty while it is still in draft form. (See:— The State (Gilliland) v. Governor of Mountjoy
Prison .
Member States of the European Communities are entitled to conclude a treaty amending the treaties
establishing the Communities. Article 236 of the Treaty establishing the European Economic Community
specifically envisaged the prospect of amendment. The plaintiff could have objected to many other amending
treaties, the most recent of which brought about the accession of Spain and Portugal, which treaty of accession
had implications identical to those relied upon by the plaintiff in this case, but he failed to do so at the time. Mr.
Callan appears to suggest that there can be no amendments at all, because the people of Ireland agreed to one
treaty only. If, however, they accept the earlier amendments, then there must be a general right to amend, and
the Single European Act is an exercise of that right. I am not suggesting that the right to amend is limitless, but I
do suggest that where the treaty amendments do occur, that they are within the scope of the original establishing
treaties. He cited Campus Oil v. Ministry for Industry and Energy (No. 2) and referred to the balance of
convenience. The citizens of Ireland will not be affected if these injunctions are granted. The State, however,
will suffer in terms of its international standing in its external relations with its partners. The court should
approach the balance of convenience within a much wider context, viz. the European context. The court should
have regard to the fact that its decision will affect not only Ireland, but the other Member States of the European
Communities as well, of which the total population affected comprises 300 million. The balance of convenience
to be considered is not limited to the domestic sphere. The court is entitled to take into account the broader
European context. If injunctions sought by the plaintiff were granted, then incalculable damage would be done.
All sectors of the Irish economy have supported the Single European Act. The plaintiff should not be permitted
to give an undertaking as to damages which would be worthless.
Paul Callan S.C. in reply: Regarding Cahill v. Sutton , the plaintiff is a serious citizen and the affidavits
before the court have been made by experts in their areas of particular competence. The plaintiff took all steps
appropriate

[1987] Crotty v. An Taoiseach 724


1 I.R. H.C.
for a concerned citizen. He obtained and examined the explanatory memorandum to the Single European Act
and took advice from his legal advisers. He wrote to members of the Oireachtas and awaited the completion of
the legislative function. He then waited to see if the President might refer the matter to the Supreme Court under
Article 26 of the Constitution. During debates in the Oireachtas reservations had been expressed by senior
politicians, including a former Attorney General, on the constitutionality of the proposed European
Communities (Amendment) Bill, 1986. (See:— Commissionv. Council: Re. ERTA (Case 22/70) ).
Barrington J.: Is it not the case that the courts should respect the Oireachtas and assume that the
Constitution will not be violated except by inadvertence? There was a serious motion by the Dáil properly
considered.
Paul Callan S.C.: I concede the court will bear that in mind. But a Bill goes through 10 stages in the Dáil
and Seanad and is scrutinised by the President. That is the presumption of constitutionality. A treaty is in a
distinct situation. It only comes before the Dáil when there is a possibility that it involves a charge upon public
funds. It does not go to the Seanad or the President. There is no constitutional provision to refer a treaty to the
Supreme Court because it was not in the immediate contemplation of the framers of the Constitution that a
treaty, such as the Treaty of Rome establishing the European Economic Community, would transfer sovereignty.
(He cited Marbury v. Madison ; Buckley and Others (Sinn Féin) v.Attorney General and Byrne v. Ireland. )
The balance of convenience must be looked at in a realistic way. The motion for the Dáil was not put down
until the political holidays on the 23rd September, 1986. The explanatory memorandum was not available to the
plaintiff until November, 1986, and this provided him with his first opportunity to consider the matter. On the
2nd December, 1986, the Minister for Foreign Affairs sought leave to introduce the Bill. The second stage of the
Bill was reached on the 9th December, and the motion was passed on the 11th December. The speed at which
the motion passed must have set some record for changes of such constitutional magnitude. To remove from the
plaintiff effective access to the courts would be to give the executive an immunity not contemplated in the
Constitution — see Byrne v. Ireland [1972] I.R. 241 at p. 281. The plaintiff is entitled to succeed, and if the
balance of convenience is material to the granting of an interlocutory injunction, then the balance dictates that
matters stand as they are to allow the plaintiff to go to the Supreme Court. The Court should not act in a manner
which would have the effect of nullifying the reliefs sought by the plaintiff or ending his rights. That would be
against the received interpretation of the Constitution: The State (Quinn)v. Ryan [1965] I.R. 70 at p. 122.

[1987] Crotty v. An Taoiseach 725


1 I.R. Barrington J. H.C.

24th December 1986


Barrington J.

First of all I should thank counsel for the assistance which they have given to me in relation to what I have
found to be an extremely difficult case. It is an application for an interlocutory injunction and I must endeavour
to follow the procedure contemplated in the Campus Oil v. Minister for Industry & Energy (No. 2) [1983] I.R.
88 decision in my approach to the matter. It has the complication, which is adverted to obliquely in that case,
that the issues raised are constitutional issues in relation to which weight must be given to the presumption of
constitutionality. But subject to that, what I have to direct my mind to is whether the plaintiff has raised a fair
question of law and it appears to me to be proper, having regard to the remarks of the Chief Justice in the
Campus Oil Case , to attach a greater significance to the term "fair question of law" than would be attached in
private litigation because of the existence of the presumption of constitutionality in favour of an Act of
Parliament and also a similar kind of presumption in favour of the executive acts of the Government.
Nevertheless it appears to be a fair question and it is not a matter on which I should attempt to adjudicate at this
stage and I will attempt to refrain from doing so.
Secondly, I have to consider the balance of convenience as between the parties, and in that context again
the case is somewhat unusual in that one is dealing with the balance of convenience as between a private citizen
and the government of the state and also one is dealing with the balance of convenience in a context in which
the plaintiff is attempting to raise a constitutional issue.
The nature of the relief sought in the motion before me is quite unusual and as far as I know without
precedent and it is a claim for an injunction restraining the defendants who in effect are the Government of
Ireland and each of them from depositing with the Government of the Italian Republic any purported instrument
of ratification of the Single European Act. Now the Single European Act, despite its name, is an international
treaty which because it sought to impose a charge on public funds required to be approved by a resolution of the
Dáil and I am informed that the Dáil did in fact pass such a resolution on the 11th December, 1986. The Act
was then sent to the President who, I am informed, has now affixed the Seal of Ireland on it in accordance with
the advice of the Government.
The plaintiff seeks, in the action, to attack the provisions of the Single European Act for reasons which I
will touch on later and he also seeks to attack as unconstitutional the provisions of the European Communities
(Amendment) Act, 1986, which I am informed was signed and promulgated as law by the President today.
The same plaintiff previously made an abortive application to Carroll J. At that stage he was being advised
by a different solicitor and it would appear that that solicitor appeared before Carroll J. He issued a plenary

[1987] Crotty v. An Taoiseach 726


1 I.R. Barrington J. H.C.
summons and appeared before Carroll J. looking for leave to serve short notice. The short notice he sought was
apparently to prevent the Minister proceeding with the Bill in Dáil Éireann and it would appear that Carroll
J. dismissed that application. The application was clearly misconceived because it is quite clear on the
authorities that the Oireachtas is free to exercise its legislative powers without interference by the Courts in the
course of legislation and, just as the Courts expect independence within their own sphere, likewise, the
legislature is entitled to legislate in the manner which it thinks best within its own sphere without interference
by the Courts in the course of the legislative process. It appears to me on the same principle that the
Government is free to formulate the external policy of the State and that is a matter vested in the Government
by the Constitution and authority for those propositions in relation to the independence of the legislature and the
executive, subject to the Constitution, within their own spheres is to be found in Boland v. An Taoiseach
[1974] I.R. 338 and Finn v. Attorney General [1983] I.R. 154.
The plaintiff however — and this is one of the matters which makes this litigation unique in my
experience — submits that the substantial process of legislation is now over. The European Communities Bill
is now enacted into law and it forms part of the law of the State subject to any question as to its
constitutionality. Likewise the substantive part of policy formulation of the Government associated with the
adoption of the Single European Act is now over. The Act has been approved by resolution of the Dáil, has
been sealed by the President and all that remains is the formal act of depositing the instrument of ratification
with the Government of the Italian Republic pursuant to a procedure contemplated by article 33 of the Single
European Act itself.
The background to the present case is to be found in the provisions of the Constitution of Ireland, 1937,
which delineate the framework of a sovereign independent state. You have first of all Article 1 which says:—
"The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of
Government, to determine its relations with other nations, and to develop its life, political, economic and
cultural, in accordance with its own genius and traditions."
Then you have Article 6 which says that:—
"All powers of government, legislative, executive and judicial, derive, under God, from the people, whose
right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy,
according to the requirements of the common good."
You have Article 15 which deals with the law-making or legislative power of the State and Article 15, s. 2,
sub-s. 1 says:—
"The sole and exclusive power of making laws for the State is

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1 I.R. Barrington J. H.C.
hereby vested in the Oireachtas: no other legislative authority has power to make laws for the
State."
Then it goes on to deal with subordinate legislatures which are not relevant for the purposes of this
particular judgment. Then you have Article 28, s. 2 which vests the executive power of the State in the
Government and then you have Article 29, s. 4, sub-s. 1 which says:—
"The executive power of the State in or in connection with its external relations shall in accordance with
Article 28 of this Constitution be exercised by or on the authority of the Government."
And we now know that, since the Republic of Ireland Act, 1948, the President exercises those powers by or
on the authority of the Government in cases where the Government advises him.
Article 29 of the Constitution also deals with international agreements. In sub-s. 1 of s. 5 it provides that
"Every international agreement to which the State becomes a party shall be laid before Dáil Éireann" and
in sub-s. 2"The State shall not be bound by any international agreement involving a charge upon public funds
unless the terms of the agreement have been approved by Dáil Éireann ." And then in s. 6 it provides "No
international agreement shall be part of the domestic law of the State save as may be determined by the
Oireachtas."
And that is the general framework of the institutions of a sovereign, independent, constitutional and
democratic state. A particular problem arose in 1972 at the time when Ireland was proposing to joint the
European Economic Community and that was whether the Oireachtas had power to make an international
agreement part of the domestic law of the State. That was a matter for the Oireachtas only, but it was questioned
as to whether the Oireachtas had power to delegate law-making functions administrative, legislative, executive
and judicial functions to supranational authorities and for that reason it became necessary to pass the Third
Amendment to the Constitution which provides that:—
"The State may become a member of the European Coal and Steel Community (established by Treaty
signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty
signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established
by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates
laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of
the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or
institutions thereof, from having the force of law in the State."
And the significance of that second sentence of the Amendment was that the Constitution could not now be
invoked to invalidate any measure which the

[1987] Crotty v. An Taoiseach 728


1 I.R. Barrington J. H.C.
State was directed by the institutions of the EEC to take arising out of the exercise of their powers, nor to
invalidate any regulation or any decision of the European Court which had direct effect within this State by
virtue of the provisions of the Treaties. And that, therefore, was a very far-reaching amendment to the
provisions of the Constitution.
Now the Single European Act is of course an international treaty and under the provisions of article 33 the
Act must be:—
". . . ratified by the High Contracting Parties in accordance with their respective constitutional
requirements. The instrument of ratification will be deposited with the Government of the Italian Republic.
This Act will enter into force on the first day of the month following that in which the instrument of
ratification is deposited of the last Signatory State to fulfil that formality."
That provision, as Mr. Callan for the plaintiff has pointed out, concerning the form whereby an
international treaty becomes part of international law, on deposit with a particular nominated authority,
conforms in general principle with the provisions of article 15 of the Vienna Convention on the Law of Treaties
to which this State is not a party but which appears to attempt to codify the general provisions of customary
international law. It is therefore an instrument to which international authorities would pay respect and it
provides that the consent of a State to be bound by a treaty is expressed by accession when:—
"(a) the treaty provides that such consent may be expressed by that State by means of accession;
(b) it is otherwise established that the negotiating States were agreed that such consent may be expressed
by that State by means of accession;
(c) or all the parties have subsequently agreed that such consent may be expressed by that State by means
of accession."
And then article 16 refers to the exchange or deposit of instruments of ratification:—
"Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession
establish the consent of a State to be bound by a treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the depositary, if so agreed."
But in fact it does not appear to be necessary to fall back on that provision because, as I said, there is a
special arrangement for deposit indicated by the Single European Act itself.
Now, as I indicated, to join the European Communities, it was necessary for this State to have first of all
the Third Amendment to the Constitution: secondly, to have a treaty of accession to the Communities,

[1987] Crotty v. An Taoiseach 729


1 I.R. Barrington J. H.C.
and thirdly, to have the European Communities Act, 1972. That Act contains a definition which may be of some
significance for the purposes of these proceedings because it says in the definition section of the Act of 1972
that "the treaties governing the European Communities means" and it then sets them out: the EEC, the Euratom
Treaty and all the other treaties governing the Communities.
To achieve the present proposed change we have now the Single European Act, which is the international
treaty, and we have the European Communities (Amendment) Act, 1986, but there is no provision for amending
the Constitution because in the view of the Government, apparently, such provision is not necessary. So that, so
far as the bringing into force of the proposed changes of the European Communities in the Constitution, so far
as this State is concerned, only two administrative procedures remain: one being the deposit of the instrument of
ratifiaction with the Government of the Italian Republic, and the other the making of an order under s. 3, sub-s.
3 of the new European Communities (Amendment) Act, 1986, bringing that Act into force. When that is done
the phrase in the Act of 1972, "the treaties governing the European Communities", will be expanded to include
certain provisions of the Single European Act set out in the new Act so that, in effect, the operative provisions
of the Single European Act will become part of the governing treaties of the European Communities.
Now it appears to me that there is no doubt that the Single European Act does attempt to amend and to
supplement the treaties establishing the European Communities and indeed it so says on its face. At the same
time it is also clear that the Treaty of Rome itself at article 236 contemplated that the Treaty could be amended
and it reads:—
"The Government of any Member State or the Commission may submit to the Council proposals for the
amendment of this Treaty.
If the Council, after consulting the Assembly and, where appropriate, the Commission, delivers an opinion
in favour of calling a conference of representatives of the Governments of the Member States, the
conference shall be convened by the President of the Council for the purpose of determining by common
accord the amendments to be made to this Treaty.
The amendments shall enter into force after being ratified by all the Member States in accordance with
their respective constitutional requirements."
Therefore it appears that while amendments of the Treaty of Rome are contemplated by the Treaty itself,
the amendments when they come into effect or when they are debated are the independent acts of the Member
States and if accepted by them are an addition to or an amendment of the Treaties. It follows, as I previously
indicated, that once the act of ratification

[1987] Crotty v. An Taoiseach 730


1 I.R. Barrington J. H.C.
of the Single European Act has been deposited with the Government of the Italian Republic and the order made
in accordance with the European Communities (Amendment) Act, 1986, bringing that Act into operation, then
the Single European Act becomes one of the governing treaties of the European Communities, and thereupon it
would appear, under the provisions of the Third Amendment to the Constitution, that no provision of the
Constitution "invalidates laws enacted, acts done or measures adopted by the State necessitated by the
obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the
Communities, or institutions thereof, from having the force of law in the State."In other words, once all the
pieces of the jigsaw puzzle are in place, it would appear to follow that the obligation to observe the provisions
of the Single European Act would be one of the obligations of membership of the European Communities and
would have validity within the jurisdiction of this country in the domestic law of this country by virtue of the
provisions of the Third Amendment to the Constitution.
One of the major points at issue between the parties is that while such provisions would be necessitated by
the obligations of membership once the amendment to the Treaties has been made, at the present time when the
amendment is still a proposed amendment by way of change or addition to the Treaty of Rome it cannot be said
to be "necessitated" by the provisions of the Treaty of Rome and therefore, at this point in time, the plaintiff
submits it is open to constitutional challenge by him although it might not be open to constitutional challenge by
him at a later stage. Now the respective contentions of the parties on this matter have been that Mr. Fitzsimons
for the defendants on the one hand has submitted that what the Single European Act does is merely to tidy up
the administrative procedures of the Communities within the ambit of the original Treaties. Mr. Callan on the
other hand submits that the effects are much more far-reaching. For instance he submits that the Single
European Act contemplates the establishment of a new court within the EEC with powers presently undefined,
although he has to admit that such a court, if established, would in fact be subordinate to the present Court of
Justice of the European Communities which, in relation to the new court, would act as a court of appeal. He also
submits that the Single European Act contains new provisions dealing with the health of workers, a matter on
which the original Treaty of Rome was silent, in the sense that there was no specific reference to that matter in
it, and he says that this being an extension of the law-making powers of the institutions of the EEC is
necessarily a diminution of the sole and exclusive law-making powers of the Oireachtas referred to in Article 15
of the Constitution. Likewise he says the Single European Act contemplates the waiver of certain existing
provisions requiring unanimity among Member States and substitutes in their place different forms of majority
decision whether weighted or otherwise and these matters are referred to in a

[1987] Crotty v. An Taoiseach 731


1 I.R. Barrington J. H.C.
schedule to a memorandum which was prepared apparently for the Foreign Affairs Committee of the British
Parliament and which is conceded by both parties accurately to set out the contemplated changes.
The plaintiff submits that the result would be to give to the European institutions increased law-making
powers over and above those contemplated in 1972 at the time of the referendum and thereby to encroach upon
the sole law-making powers of the Oireachtas under Article 15 of the Constitution. It appears to me that, on this
question, the plaintiff has raised a fair issue for a court to decide.
Great stress has been laid in the course of the case on the San Michele Case (Cases 9/65 and 58/65)
[1967] E.C.R. 1 being a decision of the Court of Justice of the European Communities. That decision appears to
contemplate that once a treaty has been formally ratified by a Member State, by the formal deposit of the
instrument of ratification, the European Court in exercising its jurisdiction will not go behind that ratification
and the Court says in its judgment at p. 29:—
"Whereas, however, the Court of Justice, as the institution entrusted with ensuring that in the interpretation
and application of the Treaty the law is observed, can only take into consideration the instrument of
ratification, which itself was deposited on behalf of Italy on 22 July 1952 and which, together with the
other instruments of ratification, brought the treaty into force. Whereas it is clear from the instruments of
ratification, whereby the Member States bound themselves in an identical manner, that all States have
adhered to the Treaty on the same conditions, definitively and without any reservation other than those set
out in the supplementary protocols, and that therefore any claim by a national of a Member State
questioning such adherence would be contrary to the system of Community law."
Now in that context Mr. Callan has raised this submission, that if the instrument of ratification of the
Single European Act is deposited with the European Court then he will have lost any status he might otherwise
have in relation to attacking the validity of the Single European Act and that thereafter the institutions of the
European Communities will be entitled, within the sphere of their jurisdiction — increased he suggests by the
provisions of the Act — to make regulations and legal decisions which will be effective within the domestic
law of this country and against which the Constitution cannot be invoked.
The contrary submission put forward by Mr. Fitzsimons is that if Mr. Callan — whatever his status before
the European Court — pursues his present substantive application and establishes to the satisfaction of the
court which finally hears the action that the European Communities Act or the Single European Act in fact
violates the Constitution of Ireland, that the Government of Ireland would then be obliged in accordance with
the

[1987] Crotty v. An Taoiseach 732


1 I.R. Barrington J. H.C.
provisions of this jurisdiction to abrogate so far as may be necessary the provisions under the European
Treaties. It appears to me on that matter also the plaintiff has raised a fair and substantial point of law.
A strong attack has been made on the plaintiff on the basis that he has no locus standi so far as these
proceedings are concerned and Mr. Fitzsimons relied upon the provisions of Cahill v. Sutton [1980] I.R. 269
and this is a matter to which, needless to say, I have to give very serious regard. I think it is however important
to remember that Cahill v. Sutton dealt with private litigation and was a case where the plaintiff in the action
was attempting to set up rights of a third party in order to avail of an alleged defect in the law so as to have it
declared invalid and thereby to say there was no law and that therefore the plaintiff was entitled not to be
adversely affected by it. In other words the plaintiff was attempting to set up for her own private purposes the
rights of a third party and the Supreme Court refused to allow the plaintiff to do that. However, in the course of
his judgment in the case Henchy J. made some remarks to which I must pay very careful attention. He says, and
Mr. Fitzsimons quoted the passage, at p. 284:—
"There is also the hazard that, if the Courts were to accord citizens unrestricted access, regardless of
qualification, for the purpose of getting legislative provisions invalidated on constitutional grounds, this
important jurisdiction would be subject to abuse. For the litigious person, the crank, the obstructionist, the
meddlesome, the perverse, the officious man of straw and many others, the temptation to litigate the
constitutionality of a law, rather than to observe it, would prove irresistible on occasion."
He also refers to the danger that people who have lost their debate with the public or with the parliament
might as a final analysis bring the fight into the Courts and he says that this would be an undesirable
development if it should take place.
Now this is the matter to which I have to give very careful consideration. There is no doubt that the present
issue raised in these proceedings is a controversial political issue but it appears to me also that, right from the
start, it has been an issue dealing with the powers of the Government and with constitutional rights which are
matters of law and in which a responsible citizen — be his attitude to them right or wrong — could take a
legitimate interest and that, in so much as it is a matter which affects the whole constitutional and political
structure of the society in which he lives, it is a matter in which the individual citizen might have a legitimate
interest which might be accepted in a court of law. But I think it important to refer in more detail to what
Henchy J. said in that case because he goes on to say (at pp. 284/5):—
"The Constitution has given Parliament the sole and exclusive power of making laws. The Courts normally
accord those laws the

[1987] Crotty v. An Taoiseach 733


1 I.R. Barrington J. H.C.
presumption of having been made with due observance of constitutional requirements. If a citizen
comes forward in court with a claim that a particular law has been enacted in disregard of a
constitutional requirement, he has little reason to complain if in the normal course of things he is
required, as a condition of invoking the court's jurisdiction to strike down the law for having been
unconstitutionally made (with all the dire consequences that may on occasion result from the
vacuum created by such a decision), to show that the impact of the impugned law on his personal
situation discloses an injury or prejudice which he has either suffered or is in imminent danger of
suffering.
This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception
or qualification when the justice of the case so requires. Since the paramount consideration in the exercise
of the jurisdiction of the Courts to review legislation in the light of the Constitution is to ensure that
persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully
deprived of it, there will be cases where the want of the normal locus standi on the part of the person
questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case, there
is a transcendent need to assert against the statute the constitutional provision that has been invoked. For
example, while the challenger may lack the personal standing normally required, those prejudicially
affected by the impugned statute may not be in a position to assert adequately, or in time, their
constitutional rights. In such a case the court might decide to ignore the want of normal personal standing
on the part of the litigant before it. Likewise, the absence of a prejudice or injury peculiar to the challenger
might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable
against a grouping which includes the challenger, or with whom the challenger may be said to have a
common interest — particularly in cases where, because of the nature of the subject matter, it is difficult to
segregate those affected from those not affected by the challenged provision.
However, those examples of possible exceptions to the rule should not be taken as indicating where the
limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal
standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are
weighty countervailing considerations justifying a departure from the rule."
It does appear to me, assuming the plaintiff were otherwise devoid of constitutional standing, that he has
raised matters which are common to him

[1987] Crotty v. An Taoiseach 734


1 I.R. Barrington J. H.C.
and to other citizens and which are weighty countervailing considerations which would justify, on their own, a
departure from the rule in relation tolocus standi. But it does appear to me that in relation to one matter — and
it is a basic matter — the plaintiff clearly has a locus standi because his contention is that what is being done
involves an amendment to the Constitution which should be submitted to a referendum, and that he, as a citizen,
has the right to be consulted in such a referendum and that his right is being infringed. He may be correct in
making that submission or he may not but it appears to me that it is a serious and important issue and that he has
the locus standi to raise that particular issue.
It is contended that the present application is an abuse of the process of the court. However, I am satisfied
that what happened was that the plaintiff, when another solicitor was acting for him, applied to Carroll J. for
leave to serve short notice of motion to prevent the Minister placing the matter for consideration before the
Oireachtas. It is quite clear that that application met with short shrift, and rightly so, from Carroll J. I think it
proper to remark also that when Mr. Callan first made his interim application he informed me that that
application had been made and conceded that the application was ill thought out and should not have been
made. The application now being made by Mr. Callan and his present team is a much more sophisticated one
and it appears to me that he has advanced cogent reasons for making this application at this time and in this way
and that it could not properly be referred to as an abuse of the process of the court.
Secondly, and this has caused me some concern, so much so that I checked on the matter myself, it has
been suggested that the plaintiff was forum shopping because having failed in his application before Carroll J.
he shopped around for a different judge. If that were true I think it would be a reason for refusing him relief
now. But I am satisfied from enquiries at the Central Office that in fact the plaintiff or his solicitor sought to
make the application before the judge who was on duty, who was MacKenzie J., but that MacKenzie J. was ill at
the time and therefore he had to make the application before another judge. Apparently Carroll J. was not
available either and ultimately the plaintiff's legal advisers succeeded in tracking me down and while I might
prefer, having regard to the complexity of the matter, that they had found a different judge, I do not think that I
can fault them for the course of conduct they followed.
Next I come to the question of the balance of convenience. On the one hand you have the right of one
private citizen who has raised a fair and substantial question touching his constitutional rights. Against him it is
said that this present application is not necessary because he can achieve the same result by proceeding with his
substantive constitutional action and if he is right at the end of the day, he will be entitled to relief. But in that
context one has the other puzzling question which Mr. Callan has raised in the light of the decision in San
Michele (Cases 9/65 and 58/65) [1967] E.C.R. 1, to

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1 I.R. Barrington J. H.C.
the effect that, once the instrument of ratification is deposited, a new jurisdiction will be assumed on a
supranational level by the institutions of the Communities and that their jurisdiction will be entitled to effect
within the domestic law of this country, and that, putting the matter at its easiest or at its least damaging from
the plaintiff's point of view, one would have a situation where potentially there was a conflict of jurisdiction
between the institutions of the European Communities and the domestic courts of this country. It appears that
that is a matter on which Mr. Callan has raised a fair question and which is relevant also in the context of the
balance of convenience because it would appear that while the Government could, in the event of the courts
ultimately holding that the steps already taken were unconstitutional, attempt to retract from its international
commitments, the embarrassment certainly to the State would be considerable and indeed it is arguable that we
would be entering on a sea of litigation which is uncharted so far as the knowledge of this particular court goes.
Against those difficulties with which the plaintiff is confronted, there is the serious embarrassment which
would be caused to the Government if it is unable to lodge the instrument of ratification before the end of this
month and that clearly is a serious matter to which weight must be given but I think it is also relevant, in that
context, to note that article 33 of the Single European Act itself contemplates that the Act is to be "ratified by
the High Contracting Parties in accordance with their respective constitutional requirements."The plaintiff has
raised a question as to the constitutional requirements in this country and it appears to me that that is a matter
which this court must take seriously and, on balance, that that matter has been raised in this court at a time when
the various changes are not yet binding on the State and that this court must in pursuance of its general duties
under the Constitution allow a constitutional issue to be raised and allow the status quo to be preserved pending
its resolution. So I think the balance of convenience is in favour of granting the injunction rather than refusing
it. In that context of course I have also had to consider, as I previously indicated, that there is a constitutional
presumption in favour of the Act of 1986 and I am prepared to accept for the purposes of this application that
the Executive is also entitled to a similar kind of respect in relation to its executive functions and furthermore
that the court must proceed on the basis of a presumption in favour of the correct exercise of executive powers,
which presumption is strengthened because a resolution of Dáil Éireann has been passed. Needless to say, I
have found these matters very troublesome but it appears to me that even despite those presumptions I still must
reach the conclusion that at this early stage the plaintiff has raised an issue of such substance and importance as
to warrant preserving the status quo until the issue has been resolved in these courts.
I accordingly will grant the interlocutory injunction sought by the plaintiff.

[1987] Crotty v. An Taoiseach 736


1 I.R. Barrington J. H.C.

On 2nd January, 1987, the plaintiff filed a very lengthy statement of claim signed by three senior counsel and
two junior counsel, which concluded by seeking essentially the same reliefs as set out in the general
indorsement of claim to the plenary summons. By its defence filed on the 7th January, 1987, the defendants
denied constitutional infringement, and contended that sections of the statement of claim regarding future
legislative activity by the institutions of the European Communities were speculative only, and in any event
related only to matters of policy. The defendants further objected to the locus standi of the plaintiff. The matter
came on for hearing before the High Court (Hamilton P., Barrington and Carroll JJ.) on the 15th, 16th, 19th,
20th, 21st, 22nd, 23rd, 29th and 30th January, 1987.
Paul Callan S.C. , Aidan Browne S.C. and Eoin McGonigal S.C. (with them Antonia O'Callaghan and
Seamus Ó Tuathail ó tuathail ) for the plaintiff.
T.K. Liston S.C. , Eoghan Fitzsimons S.C. and John Cooke S.C. (with them James O'Reilly ) for the
defendants.
The following cases were cited in argument:— All cases listed at the outset of this report, save the last
five, were referred to in argument before the court.
Cur. adv. vult.
The judgment of the court (Hamilton P., Barrington and Carroll JJ.) was delivered by Barrington J.

12th February 1987


Barrington J.

The plaintiff is an Irish citizen. The first fifteen defendants are the Government of Ireland who exercise the
executive power of the State pursuant to the provisions of the Constitution. The sixteenth defendant is the State
and the seventeenth defendant is the Attorney General and law officer of the State designated by the
Constitution and is joined as a defendant in such capacity. In these proceedings the plaintiff claims, inter
alia:—
(1) A declaration that the State cannot become bound by the Single European Act being a treaty designed
to amend and augment the treaties establishing the European Communities and to establish European
Political Cooperation in the sphere of foreign and security policy, except by virtue of a referendum to
amend the Constitution;

[1987] Crotty v. An Taoiseach 737


1 I.R. Barrington J. H.C.

(2) A perpetual injunction restraining the defendants and each of them from depositing with the
Government of the Italian Republic any purported instrument of ratification of the Single European
Act otherwise than by virtue of and pursuant to an amendment of the Constitution through referendum;
(3) If necessary, a declaration that the European Communities (Amendment) Act, 1986, is invalid having
regard to the provisions of the Constitution.
The case raises very far-reaching issues touching Irish constitutional law, international law and the law of
the European Communities.
The Treaty of Rome
The European Communities are the European Coal and Steel Community (established by the Treaty of
Paris dated the 18th April, 1951), the European Economic Community (established by the Treaty of Rome dated
the 25th March, 1957) and the European Atomic Energy Community (established by the Treaty of Rome dated
the 25th March, 1957). The Single European Act purports, on its face, to amend and supplement all three
Treaties. Similar issues arise in relation to all three Treaties and it may simplify matters if we discuss the
problems which arise in the light of the Treaty of Rome establishing the European Economic Community.
The purpose of the Treaty of Rome was to establish a European Economic Community. The motives of the
founder members of the Community appear from the preamble to the Treaty which, with its reference to the
determination of the founder members "to lay the foundations of an ever closer union among the peoples of
Europe", recalls the preamble to the American Constitution. The Treaty contemplated the progressive removal
of barriers to trade and obstacles to the free movement of goods and capital over a period of time. Article 2 of
the Treaty accordingly provides that the Community will have as part of its task the promotion of harmonious
development of economic activities throughout the Community by establishing a common market and
"progressively" approximating the economic policies of the Member States. The preamble to the Treaty reads as
follows:—
"HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC
OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE
ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER
MAJESTY THE QUEEN OF THE NETHERLANDS,
DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,
RESOLVED to ensure the economic and social progress of their

[1987] Crotty v. An Taoiseach 738


1 I.R. Barrington J. H.C.
countries by common action to eliminate the barriers which divide Europe,
AFFIRMING as the essential objective of their efforts the constant improvement of the living and working
conditions of their peoples,
RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee
steady expansion, balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by
reducing the differences existing between the various regions and the backwardness of the less favoured
regions,
DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of
restrictions on international trade,
INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to
ensure the development of their prosperity, in accordance with the principles of the Charter of the United
Nations,
RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon
the other peoples of Europe who share their ideal to join in their efforts,
HAVE DECIDED to create a European Economic Community . . ."
Article 3 of the Treaty sets out the activities of the Community and reads as follows:—
"For the purposes set out in Article 2, the activities of the Community shall include, as provided in this
Treaty and in accordance with the timetable set out therein:—
(a) the elimination, as between Member States, of customs duties and of quantitative restrictions on
the import and export of goods, and of all other measures having equivalent effect;
(b) the establishment of a common customs tariff and of a common commercial policy towards third
countries;
(c) the abolition, as between Member States, of obstacles to freedom of movement for persons,
services and capital;
(d) the adoption of a common policy in the sphere of agriculture;
(e) the adoption of a common policy in the sphere of transport;
(f) the institution of a system ensuring that competition in the common market is not distorted;
(g) the application of procedures by which the economic policies of Member States can be
coordinated and disequilibria in their balances of payments remedied;
(h) the approximation of the laws of Member States to the extent required for the proper functioning
of the common market;
(i) the creation of a European Social Fund in order to improve employment opportunities for workers
and to contribute to the raising of their standard of living;

[1987] Crotty v. An Taoiseach 739


1 I.R. Barrington J. H.C.

(j) the establishment of a European Investment Bank to facilitate the economic expansion of the
Community by opening up fresh resources;
(k) the association of the overseas countries and territories in order to increase trade and to promote
jointly economic and social development."
Article 4 entrusts the work of the Community to four institutions: (1) an Assembly, (2) a Council, (3) a
Commission, and (4) a Court of Justice, each acting within the limits of the powers conferred upon it by the
Treaty. By articles 5 and 6 the Member States pledge themselves to facilitate the achievement of the
Community's tasks, commit themselves to abstain from any measures which would jeopardise the attainment of
the objectives of the Treaty and promise to act in close co-operation with the institutions of the Community.
Article 7 prohibits any discrimination on the grounds of nationality. Article 8 provides that the common market
is to be established over a transitional period of twelve years divided into three stages of four years each. (This
transitional period was to end in 1969. But, so far as Ireland was concerned, the transitional period was
extended to 1977 under the terms of the Accession Treaty). All of these provisions are contained in Part I of the
Treaty under the heading "PRINCIPLES".
It seems clear that what the founders had in mind was a growing dynamic Community gradually achieving
its objectives over a period of time. Article 210 provides that the Community is to have legal personality and
article 211 provides that in each of the Member States the Community is to enjoy the most extensive legal
capacity which the laws of the State allow. The Treaty is one of indefinite duration (article 240). Article 235
provides that if action by the Community should prove necessary to attain, in the course of the operation of the
common market, one of the objectives of the Community and the Treaty has not provided the necessary powers,
the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly,
take the appropriate measures. This article has been the basis of many regulations and directives and its use as
such has been expressly approved by the Court of Justice of the European Communities. (See Hauptzollamt
Bremerhaven v. Massey-Ferguson GmbH(Case 8/73) [1973] E.C.R. 897).
Article 236 contains provisions for amending the Treaty. The Government of any Member State or the
Commission may submit to the Council proposals for the amendment of the Treaty. If the Council, after
consulting the Assembly and, where appropriate, the Commission, delivers an opinion in favour of calling a
conference of representatives of the Governments of the Member States, the conference shall be convened by
the President of the Council for the purpose of determining by common accord the amendments to be made to
the Treaty. It also provides that the amendments shall enter into force after being ratified by all the Member
States "in accordance with their respective constitutional requirements". There were a number of

[1987] Crotty v. An Taoiseach 740


1 I.R. Barrington J. H.C.
amendments to the Treaty prior to Ireland's accession and further amendments have taken place since.
The Single European Act
The Single European Act is an international treaty designed further to amend the provisions of the Treaty
of Rome. It contains, however, (at article 33) its own ratification procedure. This provides that the Act is to be
ratified by the High Contracting Parties "in accordance with their respective constitutional requirements." They
make known their ratification by depositing the relevant instrument of ratification with the Government of the
Italian Republic. Article 33 also provides that the Act is to enter into force on the first day of the month
following that on which the instrument of ratification shall have been deposited by the last signatory State to
fulfil that formality.
All Member States, except Ireland, have deposited their respective instruments of ratification with the
Government of the Italian Republic. The Irish instrument of ratification has been sealed by the President, on the
advice of the Government, is ready for deposit, and would have been deposited but for the interlocutory
injunction granted by the High Court on the 24th December, 1986.
The Single European Act consists of a preamble which refers, inter alia,to the European Convention for
the Protection of Human Rights and Fundamental Freedoms, and of four titles. Of these the most important is
Title II which contains four chapters amending the founding Treaties. Chapter I amends the European Coal and
Steel Community Treaty; Chapter II amends the Treaty of Rome; Chapter III amends the Euratom Treaty; and
Chapter IV contains general provisions.
Title I refers to certain common provisions of a procedural nature and would not appear to be important for
the purposes of this case except for article 3 which provides as follows:—
"(1) The institutions of the European Communities, henceforth designated as referred to hereafter, shall
exercise their powers and jurisdiction under the conditions and for the purposes provided for by the Treaties
establishing the Communities and by the subsequent Treaties and Acts modifying or supplementing them
and by the provision of Title II.
(2) The institutions and bodies responsible for European Political Cooperation shall exercise their powers
and jurisdiction under the conditions and for the purposes laid down in Title III and in the documents
referred to in the third paragraph of Article 1."
Title III contains provisions for co-operation by the members of the Community in the sphere of foreign
policy.
Title IV contains certain general and final provisions including article 33

[1987] Crotty v. An Taoiseach 741


1 I.R. Barrington J. H.C.
which lays down the procedure for ratification, and articles 31 and 32 which are as follows:—
Article 31
"The provisions of the Treaty establishing the European Coal and Steel Community, the Treaty establishing
the European Economic Community and the Treaty establishing the European Atomic Energy Community
concerning the powers of the Court of Justice of the European Communities and the exercise of those
powers shall apply only to the provisions of Title II and to Article 31; they shall apply to those provisions
under the same conditions as for the provisions of the said Treaties."
Article 32
"Subject to Article 3 (1), to Title II and to Article 31, nothing in this Act shall affect the Treaties
establishing the European Communities or any subsequent Treaties and Acts modifying or supplementing
them."
It would therefore appear that the most important provisions, so far as this case is concerned are those
contained in Title II, Chapter II. These include additional provisions dealing with the internal market, monetary
capacity, social policy (including health and safety of workers), economic and social cohesion, research and
technological development and the environment (see Section II). The plaintiff submits that the effect of these
provisions is to extend the scope of the Treaty of Rome and to add a new objective to the objectives set out in
that Treaty.
Article 11 of the Single European Act provides that the Council may, acting unanimously, at the request of
the Court of Justice and after consulting with the Commission and the European Parliament "attach" to the
Court of Justice a court with jurisdiction to hear and determine at first instance, subject to a right of appeal to
the Court of Justice on points of law only, certain classes of action or proceedings brought by natural or legal
persons. The new court, however, shall not be competent to hear and determine actions brought by Member
States or by Community institutions or questions referred for a preliminary ruling under Article 177 of the
Treaty.
Finally, Title II, Chapter I, Section I provides for the introduction of a"cooperation procedure" for arriving
at decisions under articles of the Treaty of Rome and for the substitution of qualified voting for unanimous
decision-making in a restricted number of cases
The European Communities (Amendment) Act, 1986
The European Communities (Amendment) Act, 1986, amends the European Communities Act, 1972, by
adding to "the treaties governing the European Communities" referred to in s. 1 of that Act, the following
provisions of the Single European Act, namely:—

[1987] Crotty v. An Taoiseach 742


1 I.R. Barrington J. H.C.

"Article 3.1; Title II; Articles 31 and 32; and, in so far as they relate to the said Article 3.1, the said Title II
and the said Articles 31 and 32, Articles 33 and 34."
The Act of 1986 is to be read as one with the Act of 1972 and the effect of the amendment is to make the
provisions of the Single European Act referred to part of the domestic law of Ireland, once the Minister for
Foreign Affairs has made his order bringing the Act of 1986 into force pursuant to the provisions of section 3.
The Constitution
This case raises fundamental issues concerning the Irish Constitution and the relationship between it and
the law of the European Communities. Both sides have therefore found it necessary to re-examine the principal
features of our Constitution.
Article 5 provides that Ireland is a sovereign, independent, democratic state. Article 6 provides that all
powers of government, legislative, executive and judicial, derive, under God from the people, "whose right it is
to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to
the requirements of the common good."These powers of government are exercisable "only by or on the
authority"of the organs of State established by the Constitution. The organs of State established by the
Constitution include the President, the Oireachtas, the Government and the Courts. The Constitution provides
for a form of separation of powers. Article 15, s. 2 vests in the Oireachtas "the sole and exclusive power of
making laws for the State." The Constitution recognises means whereby the Oireachtas may delegate some of
its law-making functions to subordinate legislatures. Prior to the Third Amendment to the Constitution there
was no provision whereby it could delegate its law-making powers to a supranational authority. The Oireachtas
may not enact any law which is in any respect repugnant to the Constitution. Every law enacted by the
Oireachtas which is in any respect repugnant to the Constitution shall be, but to the extent only of such
repugnancy, invalid.
Article 28 provides that the executive power of the State shall "subject to the provisions of this
Constitution" be exercised by or on the authority of the Government. Article 29, s. 4, provides that the executive
power of the State in or in connection with its external relations shall "in accordance with Article 28 of this
Constitution" be exercised by or on the authority of the Government.
Article 34 provides that justice shall be administered in courts established by law by judges appointed in
the manner provided by the Constitution. As the Supreme Court said in Buckley and Others (Sinn Féin)
v.Attorney General [1950] I.R. 67, at p. 81:—

[1987] Crotty v. An Taoiseach 743


1 I.R. Barrington J. H.C.

"This seems to us to contemplate and require that justice shall be administered in such manner and not
otherwise."
The High Court, and on appeal from it the Supreme Court, has jurisdiction to decide any question as to the
validity of any law having regard to the provisions of the Constitution. In considering any such question the
courts will presume that the law is in accordance with the Constitution until the contrary is clearly established.
This presumption arises from the respect which each of the great organs of state owes to the other. Each will
assume that the other is attempting properly to perform its constitutional function and will normally refrain from
interfering in a field prima facie within the area of competence of the other. There appears to be no reason why
the courts should not pay to the Government, acting within its own sphere, the same kind of respect it pays to
the Oireachtas acting in its proper domain. This would appear to apply with special force when the Government
is conducting the external relations of the State — an area within which the courts have not normally any
competence.
Both sides in the present case relied heavily on the decision of the Supreme Court in Boland v. An
Taoiseach [1974] I.R. 338. The defendants relied on it as authority for the proposition that the Government
must be free to formulate the foreign policy of the State. The plaintiff on the other hand relied on it as authority
for the proposition that, even in the conduct of the external relations of the State, the Government was subject to
the Constitution and that, at some point, a stage might be reached where it was necessary for the courts to
intervene to protect the Constitution.
In that case FitzGerald C.J., at p. 362 put the matter as follows:—
"Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or
interfere with the exercise by the Government of its executive functions, unless the circumstances are such
as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the
Constitution."
Budd J., at p. 366, put the matter as follows:—
"It is for the Executive to formulate matters of policy. The judiciary has its own particular ambit of
functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen
or the citizen and the State and matters pertaining thereto. Such matters have nothing to do with matters of
State policy. Viewing the matter from another angle, as to the nature of any relief that could properly be
claimed in proceedings of this nature, I ask whether it could be said that the Courts could be called upon to
pronounce adversely or otherwise on what the Government proposed to do on any matter of policy which it
was in course of formulating. It would seem that that would be an attempted interference with matters
which are part of the functions

[1987] Crotty v. An Taoiseach 744


1 I.R. Barrington J. H.C.
of the Executive and no part of the functions of the judiciary. From a practical standpoint alone,
what action would be open to the Courts? The Courts could clearly not state that any particular
policy ought not to be pursued.
The Constitution goes further in indicating how far the policies involved in government decisions as to
policy such as this are removed from the purview of the Courts in that it makes the Government responsible
to the Dáil which can support or oppose those policies and review them. Ultimately, there is the
responsibility of the Government to the people who must be consulted by way of referendum where any
change of the Constitution is contemplated."
Griffin J., having surveyed the Articles of the Constitution dealing with the separation of powers, put the
matter as follows, at p. 370:—
"In my view, these Articles demonstrate that the Oireachtas, and the Oireachtas alone, can exercise the
legislative power of government; that the Government, and the Government alone, can exercise the
executive power of government; and that the judicial power of government can be exercised only by judges
duly appointed under the Constitution in courts established by law under the Constitution. As the
Oireachtas is prohibited from enacting any law which is in any respect repugnant to the Constitution or any
provision thereof, the question of the validity of any law having regard to the provisions of the Constitution
is reserved to the High Court and the Supreme Court. This is not, however, in any respect an interference
by the judicial power in the exercise by the Oireachtas of the legislative power.
By the Constitution the Government is expressly made responsible to Dáil Éireann: see s. 4, sub-s. 1,
of Article 28. Counsel for the defendants argued that in no circumstances may the Courts interfere with the
Government in the exercise of its executive functions. For the purpose of this action it is not necessary to
determine this question in the form in which the argument was made, as the defendants need only show that
the Courts cannot and should not intervene having regard to the circumstances of the present case. In the
event of the Government acting in a manner which is in contravention of some provisions of the
Constitution, in my view it would be the duty and right of the Courts, as guardians of the Constitution, to
intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution
is substantiated in proceedings brought before the Courts."
Under Article 26 of the Constitution the President may, in certain circumstances, refer a Bill to the
Supreme Court for a decision as to whether it is or is not repugnant to the Constitution. The defendants stressed
that

[1987] Crotty v. An Taoiseach 745


1 I.R. Barrington J. H.C.
this was the only procedure whereby the constitutionality of legislation could be discussed, in the abstract, and
in the light of hypothetical circumstances. In all other cases they suggested that a plaintiff, to have locus standi,
had to have a specific personal grievance of the kind contemplated in Cahill v.Sutton [1980] I.R. 269. In this
case, the defendants suggested the plaintiff was attempting to get from the High Court a constitutional review of
the European Communities (Amendment) Act, 1986, without having any right to demand it. The plaintiff, on
the other hand, says that he and his fellow citizens have been deprived of the right to take part in a referendum
on what, he alleges, is in fact an attempt to amend the provisions of the Constitution.
Under Article 6 of the Constitution the people have the right "in final appeal" to decide all questions of
national policy according to the requirements of the common good. The Constitution provides, however, only
three methods whereby the people can be consulted. The first is by a general election held in accordance with
the provisions of Article 16 of the Constitution. The second is under Article 27 of the Constitution where the
President decides that a Bill is of such national importance that the will of the people thereon ought to be
ascertained by referendum. The third is by a referendum to amend the Constitution.
No citizen has a constitutional right to obtain a referendum. A proposal for the amendment of the
Constitution must be initiated in Dáil Éireann and be passed by both houses of the Oireachtas before being
submitted to the people by referendum. But if such a referendum is held the plaintiff, like every other citizen
who has the right to vote at an election for members of Dáil Éireann , has the right to vote at the
referendum. This would appear to contemplate and require that, if the Constitution is to be amended, it is to be
amended in accordance with the machinery established under Articles 46 and 47 of the Constitution and not
otherwise. The plaintiff submits that he has a right to see that this is done and that this is a right which the State
(and in particular the courts), are obliged to defend and vindicate in accordance with the provisions of Article
40, s. 3 of the Constitution.
Summary of plaintiff's case
The plaintiff maintains that the Constitution is that of an independent, democratic and constitutional state.
It is a Constitution which, on its face, excluded the possibility of Ireland becoming a member of the European
Economic Community. Article 29, s. 6 gave the Oireachtas power in certain circumstances, to make an
international treaty part of the domestic law of the State. But the Treaty of Rome was no ordinary international
agreement. It was a treaty which set up a group of supranational institutions, which, within the area of their
competence, could override the legislature, executive and judiciary of their Member States and therefore
necessarily conflicted

[1987] Crotty v. An Taoiseach 746


1 I.R. Barrington J. H.C.
with inter alia Articles 15, 28 and 34 of our Constitution. For us to join the E.E.C. required the Third
Amendment of the Constitution Act, 1972, carried at a referendum, the European Communities Act, 1972, and
the Treaty of Accession. The present proposal is one to amend the Treaty of Rome but it is proposed to do this
by means only of the ratification of the Single European Act and the enactment into law of the European
Communities (Amendment) Act, 1986, without any referendum.
(a) Form of Third Amendment
The plaintiff's case rests largely on his interpretation of the Third Amendment to the Constitution. That
amendment now appears at Article 29, s. 4, sub-s. 3 and reads as follows:—
"The State may become a member of the European Coal and Steel Community (established by Treaty
signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty
signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established
by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates
laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of
the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or
institutions thereof, from having the force of law in the State."
The plaintiff lays particular stress on the second sentence of the subsection quoted.
(b) Nature and effect of ratification procedure
The plaintiff submits that the ratification procedure under article 33 of the Single European Act, once
carried into effect, will have far-reaching effects on Community law and on domestic law. Article 33 of the
Single European Act contemplates that each of the High Contracting Parties will ratify the Act in accordance
with their respective constitutional requirements. But they signify a formal acceptance of the Treaty by the
deposit of the instruments of ratification with the Government of the Italian Republic. By doing that each state
represents to the other that it has complied with its own constitutional requirements and thereafter the matter
passes from the field of national law into that of international law; the provisions of the Treaty of Rome are
amended and the change in Community law takes place in all the Member States of the Community. To draw an
analogy from company law the memorandum and articles of association of the Community have been changed.
So also, the plaintiff submits, have the obligations of membership of the Community within the meaning of the
second sentence of the Third Amendment. The European Communities (Amendment) Act, 1986, then, the
plaintiff submits, becomes a law enacted by the State"necessitated by the obligations of membership" of the
Communities and

[1987] Crotty v. An Taoiseach 747


1 I.R. Barrington J. H.C.
becomes immune from constitutional challenge by virtue of the provisions of the Third Amendment to the
Constitution.
(c) The San Michele Case
Thereafter, the plaintiff submits, the matter cannot be challenged in Community law either and he cites as
his authority the case of Acciaierie San Michele SpA v. High Authority (Case 9/65 and 58/65) [1967] E.C.R. 1.
That was a case in which an Italian company sought to challenge in the Italian Constitutional Court the validity
of Italy's accession to the European Coal and Steel Community. It then applied in the European Court for
interim relief preventing the High Authority of the European Coal and Steel Community moving against it until
such time as the constitutional issue raised by it in the Italian Constitutional Court had been determined. The
European Court giving the grounds for its refusal of interim relief ([1967] E.C.R. 1 at p. 29) stated:—
"Whereas, in support of its application based on those factors for the adoption of the above-mentioned
interim measure, the applicant thus alleged that the judgment to be given by the Corte Constituzionale
carried "absolute" authority and that "any court having jurisdiction over Italian citizens" was obliged to
suspend judgment;
Whereas, however, the Court of Justice, as the institution entrusted with ensuring that in the interpretation
and application of the Treaty the law is observed, can only take into consideration the instrument of
ratification, which itself was deposited on behalf of Italy on 22 July, 1952 and which, together with the
other instruments of ratification, brought the Treaty into force;
Whereas it is clear from the instruments of ratification, whereby the Member States bound themselves in
an identical manner, that all States had adhered to the Treaty on the same conditions, definitively and
without any reservations other than those set out in the supplementary protocols, and that therefore any
claim by a national of a Member State questioning such adherence would be contrary to the system of
Community law;
Whereas such a claim is all the more inadmissible in that, in this case, any decision to suspend judgment
would be tantamount to reducing the Community to a cipher by regarding the instrument of ratification
either as only partially accepting the Treaty, or as the means of according to it different legal consequences,
varying with the Member State concerned, or as the means whereby some nationals might evade its rules;
Whereas the participation of the Italian Republic in the common institutions and in the rights and
obligations arising from the Treaty in fact preclude its nationals from avoiding the complete

[1987] Crotty v. An Taoiseach 748


1 I.R. Barrington J. H.C.
and uniform application of the said Treaty and from thus obtaining different treatment from that of
other nationals in the Community;
Whereas, therefore, there must be dissmissed as contrary to Community policy any application the purpose
of which is to establish discrimination of this nature which no law of ratification could introduce into a
treaty prohibiting such discrimination; . . ."
This judgment was merely a judgment on an interim application but the point being made by the European
Court appears to be a basic one. It would not be open to the Court to question the validity of the Treaty to which
it owed its existence any more than it would be open to this court to question the validity of the Irish
Constitution. Whether the same line of reasoning applies to an amendment to the Treaty is not equally clear, but
the plaintiff claims that it does.
(d) The Vienna Convention
The plaintiff seeks to reinforce his interpretation of the San Michele Case (Case 9/65 and 58/65) [1967]
E.C.R. 1 by reference to the Vienna Convention on the Law of Treaties. Ireland is not a party to this convention
but it is a convention which seeks to codify the international law in relation to treaties and it is therefore an
instrument to which international authorities would pay respect. Article 16 refers to the exchange or deposit of
instruments of ratification and provides:—
"Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession
establish the consent of a State to be bound by a treaty upon:—
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting parties or to the depositary, if so agreed."
(e) Primacy of Community Law
The plaintiff refers to the fact that, within the area of its competence, Community law takes precedence
over the national law of the Member States. It constitutes a new legal order of international law for the benefit
of which states have limited their sovereign rights and the subjects of which are not only the Member States but
also their nationals. By contrast with ordinary international treaties the EEC Treaty has created its own legal
system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member
States and which their courts are bound to apply. By creating a community of unlimited duration, having its own
institutions, its own personality, its own legal capacity and capacity of representation on the international plane,
and more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the
states to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and
thus created a body of law which binds both their nationals and themselves. The transfer by the states

[1987] Crotty v. An Taoiseach 749


1 I.R. Barrington J. H.C.
from their domestic legal system to the Community legal system of the rights and obligations arising under the
Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act,
incompatible with the concept of the Community cannot prevail. See Van Gend en Loos v. Nederlandse
Belastingadministratie (Case 26/62) [1963] E.C.R. 1; Humblet v. Belgium (Case 6/60) [1960] E.C.R. 559;
Costa v.E.N.E.L. (Case 6/64) [1964] E.C.R. 585 and Amministrazione delle Finanze dello Stato v. Simmenthal
SpA (Case 106/77) [1978] E.C.R. 629.
(f) Alleged Extension of Scope of Treaty
The plaintiff submits that the Single European Act in fact extends the scope of the objectives of the Treaty
and increases the competence of its institutions thereby diminishing the sovereignity of the organs of
government established by the Constitution. He submits that the institutions of the Treaty of Rome will now be
competent to deal with matters such as the health of workers and the environment, on which the Treaty was
previously silent. He submits that the shift from unanimous voting to qualified majority voting in certain cases
will weaken the position of Ireland and enhance the competence of the Community. He is suspicious of the
reference to the European Convention on Human Rights in the preamble to the Single European Act. He is
worried lest this and the evolving jurisprudence of the Community, based as it is in some measure on the
common constitutional heritage of the Member States, may threaten positions where the Irish Constitution takes
a particular and unique stand. He refers for instance to the right to life of the unborn. He also fears that the
provisions of Title III relating to European cooperation in the sphere of foreign policy may undermine this
State's traditional policy of neutrality.
(g) Possible subversion of Constitution
However, his principal submission is that once the instrument of ratification is lodged with the
Government of the Italian Republic it will be too late for him to look for relief because the obligations of
membership of the Communities will have been changed and everything necessitated by the changed
obligations of membership of the Communities will thereafter be immune from constitutional attack by virtue of
the provisions of the second sentence of the Third Amendment. It is this extreme circumstance which, he says,
entitles him to relief now. He is not, he claims, attempting to interfere with the formulation of policy but
attempting to stop an administrative act which will bring about an irreversible constitutional change, and which,
he suggests, is open to constitutional challenge now but will be immune from constitutional attack once the
instrument of ratification has been deposited. Even the English courts, he says, with their tradition of
parliamentary sovereignty and royal prerogative in foreign affairs, were prepared to entertain an application by
a taxpayer to prevent the approval of a draft order in council where the order, once approved, would create an
irreversible position. See Reg. v. H.M. Treasury, Ex p. Smedley [1985] Q.B. 657.

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The plaintiff submits that if what is attempted to be done in the present case is permitted then it can be
repeated, and more and more of the sovereignty of the organs of State established by our Constitution can be
transferred to the European Communities without the people generally being consulted in a referendum or
having an opportunity to challenge the matter in the courts.
(h) Locus Standi
The plaintiff claims that, in these circumstances, he is a person aggrieved within the meaning of Cahill v.
Sutton [1980] I.R. 269 in that procedures are in train, the effects of which are to amend the Constitution without
holding a referendum. He, as a person entitled to vote in a referendum, if held, has locus standi to voice his
complaint. Even if he were not an aggrieved person within the category primarily contemplated in Cahill v.
Sutton there are still in the present case "countervailing considerations"of the kind contemplated by the
judgment of Henchy J. in Cahill v.Sutton [1980] I.R. 269 at 285. These countervailing considerations he
submits are circumstances of the most serious kind and bring him within the discretion which the Supreme
Court reserved to itself in Cahill v. Sutton . He is attempting to assert the rights of himself and his fellow
citizens in a case which is the kind of action to which the Attorney General might otherwise lend his name. But
the Attorney General is already a defendant in these proceedings, and properly so, as representing the State and
as law officer of the Government. He is not therefore available to assert the rights of the public in the
circumstances of the present case.
The plaintiff asserts that it is not safe to allow the instrument of ratification to be deposited, to allow the
European Communities (Amendment) Act, 1986, to come into force and to wait until some citizen comes along
claiming that a specific right guaranteed to him by the Irish Constitution is violated by some act or regulation of
the Community. By that time, he submits, the Treaty governing the Community will have been amended. The
obligations of membership will have been changed. The European Communities (Amendment) Act, 1986, will
be in force and immune from constitutional challenge by virtue of the second sentence of the Third Amendment
to the Constitution. Community law will have primacy over national law so that it will be too late for the
plaintiff to attempt to invoke rights guaranteed to him under the Constitution against the Community measure.
Indeed the plaintiff submits that the very question arising would be one of Community law and that if any party
to the litigation sought a reference to the European Court pursuant to article 177 of the Treaty our High Court
would have to consider, and our Supreme Court would have to grant, such a request.
Under these circumstances the plaintiff submits that now is the only time at which he can make his case
and that therefore he has the locus standito make it.

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Summary of defendants' case


The defendants' case may be summarised as follows:—
(a) Premature
The defendants claimed that the plaintiff's application was premature. However they said they were
waiving this point because of their desire to get a decision on the substantive issue raised by the litigation.
(b) Locus standi
They were however relying on the point that the plaintiff had no locus standi in the sense that he could not
point to any specific way in which he personally was adversely affected by the provisions of the Single
European Act or by those of the European Communities (Amendment) Act, 1986. He could point to no concrete
specific grievance and could not therefore bring himself within Cahill v. Sutton [1980] I.R. 269. Neither the
Single European Act nor the European Communities (Amendment) Act, 1986, amended the Constitution. The
question of a referendum did not therefore arise. In any event the plaintiff had no constitutional right to have a
referendum held.
(c) No extension of scope of objectives
The Single European Act was an amendment to the Treaty of Rome. But it did not in any way extend the
scope of the objectives of that Treaty. All of the objectives referred to in Title II of the Single European Act, to
wit the articles dealing with the establishment of the internal market, with monetary capacity, with social policy,
with economic and social cohesion, with research and technological development, with the health and safety of
workers and with the environment, are all matters subsidiary to the establishment of an economic community.
They are all provided for expressly or by necessary implication in the original Treaty. Some of these subjects
such as "the environment" or "the health and safety of workers" may now loom larger in the public mind than
they did when the Treaty of Rome was made in 1957. But they were nevertheless present in the minds of the
founders of the Treaty which refers expressly, in its preamble, to the "living and working conditions" of the
peoples of the Community. In fact the Community has, over the years, been issuing regulations and directives
dealing with all these matters.
(d) Internal reform
When the Irish people voted to join the European Community in 1972 they voted to join what was
intended to be a dynamic, expanding Community with definite objectives. The Community has, over the years,
failed to achieve all of the objectives which the Members set for it. This has been blamed partly on defects in
the decision-making machinery of the Community. The Single European Act is designed to improve the
decision-making process. If an analogy is to be made with company law, changes are being made in the articles
of association of the company but the object clauses remain, in substance, the same.

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(e) Constitutional rights


There is nothing in the Single European Act which in any way affects constitutional rights guaranteed by
the Constitution. The plaintiff is concerned about what might be introduced in legislation dealing with the health
of workers. But the Community has been competent to legislate on this subject from its foundation. The plaintiff
also points to the reference to the European Convention for the Protection of Human Rights and Fundamental
Freedoms contained in the preamble to the Single European Act, but this Convention is not being made part of
the laws of Ireland and, by virtue of the provisions of article 31 and 32, it adds nothing new to the jurisprudence
of the Court of Justice of the European Communities. The European Court already looks to the European
Convention in its quest for common constitutional values which should guide the jurisprudence of the Court.
(See Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle Getreide(Case 11/70) [1970] E.C.R.
1125; J. Nold KG v. Commission (Case 4/73) [1974] E.C.R. 491). The quest for common constitutional values
is not designed to deprive nationals of Member States of fundamental rights guaranteed to them by their
respective national constitutions. Rather is it designed to protect individuals against harsh or unfair legislative or
administrative acts of the Community. The primacy of Community law within its own sphere is one of the
fundamental principles applied by the Court. The Court is also sceptical of any provision of national law which
might appear to be a disguised discrimination in favour of its own nationals contrary to the provisions of article
7 of the Treaty. Nevertheless, the Court is sensitive to the need to respect any provision of national law which is
based on deeply held feelings of public morality in that particular Member State. (See Adouiv. Belgium (Case
115/81) [1982] E.C.R. 1665; Rutili v. Ministre de l'Interieur(Case 36/75) [1975] E.C.R. 1219; Reg. v. Henn
(Case 34/79) [1979] E.C.R. 3795). But the fundamental submission is that nothing in the Single European Act
alters this position one way or the other.
(f) Legitimate sphere of executive action
The decision whether to ratify or not to ratify the Single European Act falls within the legitimate sphere of
executive action allotted to the Government by the Constitution. It is not a matter in which the Courts should
intervene. See Boland v. An Taoiseach [1974] I.R. 338. This is particularly the case with Title III of the Single
European Act which deals with cooperation in the sphere of foreign policy.
(g) Dynamic Community
When the Irish people agreed in 1972 to join the European Economic Community, they agreed to join a
Community which was, from its nature, a growing and expanding Community. By doing so, they gave the
Government permission to take all such steps as might be necessary to make us effective members of that
Community and to play our full part in it. If,

[1987] Crotty v. An Taoiseach 753


1 I.R. Barrington J. H.C.
however something were being done to change the nature of the Community from an economic community
into a political community or a military power then it would be necessary for the Government and the
Oireachtas to consult the people in a further referendum. The Community which we joined is governed by a
Treaty which contains (at article 236) its own machinery for making amendments. The fact that the people
agreed to a machinery for making amendments to the Treaty does not, of course, commit them to agreeing to
any specific amendment. But it does mean that it is competent for the Government, with a mandate, where
necessary, of a resolution of Dáil Éireann or of domestic legislation, to agree to amendments to the Treaty
within the scope of its original objectives. Only if the proposed amendment goes outside the terms of the
original objectives and amounts to an amendment to the Constitution as well, is it necessary for the Government
to consult the people in a referendum.
(h) The new court
The defendants submit that the need for the new court arises from the growing volume of work in an
expanding Community. This has put pressure on the European Court which finds an increasing amount of its
time being taken up with matters of minor importance. The proposed court, which can only be set up at the
request of the existing Court, will be "attached" to the existing Court and will be a court of first instance, subject
to a right of appeal on points of law to the existing Court. The court will not be competent to hear actions
brought by Member States or by Community institutions or questions referred for a preliminary ruling under
article 177 of the Treaty. These important matters will remain with the existing Court. The proposed new court
therefore represents a natural development in the evolution of the Community.
(i) Misunderstanding of Article 29
The defendants claim that the plaintiff has misinterpreted the Third Amendment to the Constitution. This
can only be understood in the light of Article 29 as a whole and against the background of the relationship
between national and international law.
Analysis of Article 29
As the defendants' submission on Article 29 is fundamental to the issues raised in this case I now propose
to consider this Article in detail. Article 29 of the Constitution is headed "International Relations" and, as
amended by the Third Amendment to the Constitution, reads as follows:—
"1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on
international justice and morality.
2. Ireland affirms its adherence to the principle of the pacific settlement

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of international disputes by international arbitration or judicial determination.
3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its
relations with other States.
4. 1 The executive power of the State in or in connection with its external relations shall in accordance
with Article 28 of this Constitution be exercised by or on the authority of the Government.
2 For the purpose of the exercise of any executive function of the State in or in connection with its
external relations, the Government may, to such extent and subject to such conditions, if any, as
may be determined by law, avail of or adopt any organ, instrument, or method of procedure used
or adopted for the like purpose by the members of any group or league of nations with which the
State is or becomes associated for the purpose of international co-operation in matters of common
concern.
3 The State may become a member of the European Coal and Steel Community (established by Treaty
signed at Paris on the 18th day of April, 1951), the European Economic Community (established
by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy
Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision
of this Constitution invalidates laws enacted, acts done or measures adopted by the State
necessitated by the obligations of membership of the Communities or prevents laws enacted, acts
done or measures adopted by the Communities, or institutions thereof, from having the force of
law in the State.
5. 1 Every international agreement to which the State becomes a party shall be laid before Dáil
Éireann .
2 The State shall not be bound by any international agreement involving a charge upon public funds
unless the terms of the agreement shall have been approved by Dáil Éireann .
3 This section shall not apply to agreements or conventions of a technical and administrative
character.
6. No international agreement shall be part of the domestic law of the State save as may be determined by
the Oireachtas."
It is clear therefore that Article 29 contemplates a number of different kinds of international agreements
which may be treated in different ways. International agreements or conventions of a technical and
administrative character need not even be laid before Dáil Éireann . But all other international agreements
must be laid before Dáil Éireann . If the international agreement involves a charge on public funds it is not
enough to lay it before

[1987] Crotty v. An Taoiseach 755


1 I.R. Barrington J. H.C.
Dáil Éireann . The terms of the agreement must be approved by resolution of Dáil Éireann . In The
State (Gilliland) v. Governor of Mountjoy Prison [1987] I.R. 201 the Supreme Court in its judgment struck
down a governmental order made under the provisions of the Extradition Act, 1965, purporting to apply Part II
of the Act to extraditions from this country to the United States of America. The relevant extradition treaty had
in fact been laid before Dáil Éireann . But it involved a charge upon public funds and had not been
approved by resolution of Dáil Éireann . It was not therefore binding on the State — at least in
contemplation of Irish domestic law — and it was not competent therefore for the Government to make an
order the effect of which would be to make the extradition arrangements enforceable in domestic law. The
Supreme Court did not purport to adjudicate on the question of whether the extradition treaty was a valid
international agreement. It was sufficient for our courts to say that under the provisions of our Constitution our
State was not bound by it and therefore it could not be enforced in domestic law.
But more important for the present case is s. 6 of Article 29 which provides that no international agreement
shall be part of the domestic law of the State save as may be determined by the Oireachtas. This section clearly
accepts the dualistic concept that some international agreements may be perfectly valid in international law but
remain of no relevance to the national courts of a particular country simply because the relevant constitutional
authority has not made them part of the domestic law.
This distinction is illustrated by In re Ó Laighléis [1960] I.R. 93. The applicant in that case sought to
rely upon the provisions of the European Convention for the Protection of Human Rights and Fundamental
Freedoms, which had been ratified by the State but had never been made part of its domestic law. Maguire C.J.
delivering the judgment of the Supreme Court said, at p. 124:—
"The insuperable obstacle to importing the provisions of the Convention for the Protection of Human
Rights and Fundamental Freedoms into the domestic law of Ireland — if they be at variance with that law
— is, however, the terms of the Constitution of Ireland. By Article 15, 2, 1 of the Constitution it is
provided that "the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas:
no other legislative authority has power to make laws for the State." Moreover, Article 29, the Article
dealing with international relations, provides at section 6 that "no international agreement shall be part of
the domestic law of the State save as may be determined by the Oireachtas."
The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to
be part of the domestic law of the State, and accordingly this Court cannot give

[1987] Crotty v. An Taoiseach 756


1 I.R. Barrington J. H.C.
effect to the Convention if it be contrary to domestic law or purports to grant rights or impose
obligations additional to those of domestic law.
No argument can prevail against the express command of section 6 of Article 29 of the Constitution before
judges whose declared duty it is to uphold the Constitution and the laws.
The Court accordingly cannot accept the idea that the primacy of domestic legislation is displaced by the
State becoming a party to the Convention for the Protection of Human Rights and Fundamental Freedoms.
Nor can the Court accede to the view that in the domestic forum the Executive is in any way estopped from
relying on the domestic law. It may be that such estoppel might operate as between the High Contracting
Parties to the Convention, or in the Court contemplated by Section IV of the Convention if it comes into
existence, but it cannot operate in a domestic Court administering domestic law. Nor can the Court accept
the contention that the Act of 1940 is to be construed in the light of, and so as to produce conformity with, a
convention entered into ten years afterwards."
It therefore appears that no international treaty could be part of the domestic law of Ireland save as might
be determined by the Oireachtas. If therefore the provisions of the Treaty of Rome were to have any effect in
domestic law this could only be done by means of an Act of the Oireachtas.
Many international treaties — such, for instance, as the Warsaw Convention — had been made part of
the domestic law of Ireland by virtue of Acts of the Oireachtas. But, as previously indicated, the Treaty of Rome
was no ordinary international treaty. It was a treaty which created new supranational authorities with legislative,
executive, and judicial powers claiming, within the area of their competence, to overrule the legislative,
executive and judicial organs of this State. It therefore required an amendment to the Constitution to allow
Ireland to accede to the Treaty.
The licence to join is contained in the first sentence of the Third Amendment to the Constitution and it is a
mistake to emphasise the second sentence at the expense of the first. So far as relates to the European Economic
Community, the first sentence reads:—
"The State may become a member of . . . the European Economic Community (established by Treaty
signed at Rome on the 25th day of March 1957) . . ."
The "licence" says that the State may become "a member" of a specific community which it identifies by
reference to the Treaty of Rome. The Treaty of Rome (which, as previously indicated, had been amended
several times before Ireland's accession) is not referred to for the purpose of limiting or freezing the activities of
the Community but for the purpose of identifying the Community which the State is permitted to join. This is
the

[1987] Crotty v. An Taoiseach 757


1 I.R. Barrington J. H.C.
Community incorporated by article 210 of the Treaty and it remains, in law, the same Community whether the
Treaty is amended or not.
By the Accession Treaty made at Brussels on the 22nd January, 1972, it was provided, inter alia, that
Ireland should become a member of the European Economic Community subject to depositing its instrument of
ratification with the Government of the Italian Republic before the 31st December, 1972.
A referendum was held on the 10th May, 1972, at which the people voted by an overwhelming majority in
favour of the Third Amendment of the Constitution, and the Third Amendment of the Constitution Act, 1972,
was enacted into law on the 8th June, 1972. Ireland deposited its instrument of ratification on the 16th
December, 1972.
These acts may have been sufficient to make Ireland a member of the European Community in
international law as from the 1st January, 1973. Indeed Article 1 of the Treaty of Accession provided:—
"The Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain
and Northern Ireland hereby become members of the European Economic Community . . ."
But these acts were not sufficient in themselves to make Ireland an effective member of the Community.
To make Ireland an effective member as of the 1st January, 1973, it was necessary to make the Treaty part of the
domestic law of Ireland. To achieve this it was necessary to pass an Act of the Oireachtas pursuant to the
provisions of Article 29, s. 6, making the Treaty of Rome part of the domestic law of Ireland and giving the
institutions of the Community a status in Irish domestic law. Had the Oireachtas not passed the European
Communities Act, 1972, Ireland might still have been a member of the Community in international law but it
would have been in breach of its obligations in international law under the Treaty of Rome and under the Treaty
of Accession. This however would not have been a matter in relation to which the domestic courts of this
country would have had any competence because the Treaty would not have been part of the domestic law. The
immunity from constitutional challenge conferred by the second sentence of the Third Amendment on laws
enacted, acts done, or measures adopted by the Community or its institutions would therefore have been
meaningless as these laws, acts or measures would not have been part of the domestic law of this country.
To make them part of the domestic law of this country the European Communities Act, 1972, was
necessary. This Act cannot therefore have been passed by virtue of the second sentence of the Third Amendment
but by virtue of the licence to join the European Community contained in the first sentence of the Third
Amendment. It accordingly in s. 1 lists the Treaties governing the European Communities and, in s. 2, provides
that from the 1st January, 1973, the Treaties governing the European Communities

[1987] Crotty v. An Taoiseach 758


1 I.R. Barrington J. H.C.
and the existing and future acts adopted by the institutions of those Communities, shall be binding on the State
and shall be part of the domestic law thereof under the conditions laid down in those Treaties.
The European Communities Act, 1972, was clearly authorised by the people when they authorised the
State to join the European Economic Community. It must be presumed to be constitutional and would appear to
be safe from constitutional challenge. But had it gone outside the terms of the licence granted by the first
sentence of the Third Amendment it would not have been immune from constitutional challenge.
The immunity conferred by the second sentence of the Third Amendment would appear to apply to
legislative and administrative measures taken in the day-to-day running of the Community. For instance article
189 of the Treaty provides that the Council and the Commission may, in accordance with the provisions of the
Treaty, make regulations and issue directives. A regulation is of general application, it is binding in its entirety
and is directly enforceable in all the Member States of the Community. A directive, on the other hand, is binding
only as to the result to be achieved, and leaves to each Member State the choice of form and method in its
enforcement. Put another way, there are some acts of the institutions of the Community which are directly
enforceable in all the Member States whereas others require legislative or administrative action by the Member
States to procure their enforcement. It is these matters which are referred to in the second sentence of the Third
Amendment when it says:—
"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State
necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or
measures adopted by the Communities, or institutions thereof, from having the force of law in the State."
It is these matters alone which are given immunity from constitutional challenge by the second sentence of
the Third Amendment. But such of these matters as are acts of the institutions of the Communities derive their
status in domestic law from the European Communities Act, 1972. If the second sentence of the Third
Amendment is the canopy over their heads, the Act of 1972 is the perch on which they stand.
The European Communities (Amendment) Act, 1986, purports to amend the European Communities Act,
1972. Section 1 provides that the portions of the Single European Act therein referred to are to be included in
the definition of "the Treaties governing the European Communities"contained in s. 1 of the Act of 1972. The
effect is to make them part of the domestic law of Ireland by virtue of the provisions of s. 2 of the Act of 1972.
The Act of 1986 amends the Act of 1972 and is to be construed with it as one Act. Naturally, being an Act
of the Oireachtas it is presumed not to violate the Constitution but, like the Act of 1972, it derives its validity
from the licence contained in the first sentence of the Third Amendment. If it

[1987] Crotty v. An Taoiseach 759


1 I.R. Barrington J. H.C.
goes outside the terms of this licence it is open to challenge, in an appropriate case, as being invalid having
regard to the provisions of the Constitution. Should such challenge be successful such acts of the institutions of
the Community as depend on it for their status in domestic law would lose that status and would be of no effect
in domestic law. Such a result might be embarrassing for the Government, and might involve the State being in
breach of its international obligations, but such considerations could not prevent this court from fulfilling its
constitutional duty, should the matter be made out in a case properly before it.
Conclusion
I conclude that the plaintiff is mistaken when he submits that, on the deposit of the instrument of
ratification of the Single European Act by the Government with the Government of the Italian Republic, the
European Communities (Amendment) Act, 1986, or the order bringing it into force or both will become immune
from constitutional challenge under the second sentence of the Third Amendment. It has immunity but only if it
does not go outside the terms of the licence granted by the first sentence of that amendment. That is a licence to
join a living dynamic Community of the kind described by the defendants.
As I am satisfied that the mere deposit of the instrument of ratification will not confer on the European
Communities (Amendment) Act, 1986, any immunity from challenge on constitutional grounds or any
impregnable position in domestic law on such provisions of the Single European Act as will depend on it for
their status, I conclude that the relief sought by the plaintiff is not necessary for the protection of the
Constitution or of the fundamental rights guaranteed thereby. The extraordinary relief which the plaintiff claims
of an injunction restraining the Government from depositing the instrument of ratification with the Government
of the Italian Republic is not therefore necessary and could only be justified — if justified at all — in a
situation where there was no other method of protecting the Constitution.
The plaintiff, having failed on this point, has no locus standi to make the other points which have been
advanced on his behalf in argument. He is not immediately affected or threatened by any of the other matters
which he seeks to raise. Therefore on the authority of Cahill v. Sutton [1980] I.R. 269 he has no locus standi to
advance these arguments. He is not entitled to a general review of the Act similar to the one which might be
made of a Bill by the Supreme Court on a reference to it of the Bill by the President under Article 26 of the
Constitution. This Court is not therefore called upon to decide them.
As O'Higgins C.J. said in Cahill v. Sutton [1980] I.R. 269 at p. 276:—
"This Court's jurisdiction, and that of the High Court, to decide questions concerning the validity of laws
passed by the

[1987] Crotty v. An Taoiseach 760


1 I.R. Barrington J. H.C.
Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without
the exercise of such a jurisdiction, the checks and balances of the Constitution would cease to
operate and those rights and liberties which are both the heritage and the mark of free men would be
endangered. However, the jurisdiction should be exercised for the purpose for which it was
conferred — in protection of the Constitution and of the rights and liberties thereby conferred.
Where the person who questions the validity of a law can point to no right of his which has been
broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be
advanced, the Courts should not entertain a question so raised. To do so would be to make of the
Courts the happy hunting ground of the busybody and the crank. Worse still, it would result in a
jurisdiction which ought to be prized as the citizen's shield and protection becoming debased and
devalued."
In the same case Henchy J. put the matter as follows, at p. 284:—
"The Constitution has given Parliament the sole and exclusive power of making laws. The Courts normally
accord those laws the presumption of having been made with due observance of constitutional
requirements. If a citizen comes forward in court with a claim that a particular law has been enacted in
disregard of a constitutional requirement, he has little reason to complain if in the normal course of things
he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been
unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum
created by such a decision), to show that the impact of the impugned law on his personal situation discloses
an injury or prejudice which he has either suffered or is in imminent danger of suffering."
It is therefore clear that the plaintiff has no locus standi to raise these matters.
This court would not like to say anything which would in any way inhibit any court which might, in the
future, be called upon to decide any of them in a justiciable controversy properly before it. In deference,
however, to the able and elaborate arguments which have been advanced to the court by counsel on both sides it
is perhaps fair to say that the court is unconvinced that there is anything in the Single European Act which is
outside the terms of the licence granted by the first sentence of the Third Amendment, extends the scope of the
objectives of the European Community, poses any new threat to any rights guaranteed by our Constitution or
represents anything other than an evolution of the Community within the terms of its original objectives.
So far as the portions of the Single European Act dealing with European Political Cooperation, and which
it is not proposed to make part

[1987] Crotty v. An Taoiseach 761


1 I.R. Barrington J. S.C.
of the domestic law of Ireland, are concerned, this court does not consider that it has any function in relation to
them.
In the circumstances the plaintiff's case should be dismissed.
[Order: Dismiss plaintiff's claim. No order as to costs. Discharge interlocutory injunctions of 24th
December, 1986. Refuse plaintiff's application for stay. Liberty to defendants to apply in relation to the
plaintiff's undertaking as to damages given at the hearing of the interlocutory motion.]

The plaintiff thereupon immediately applied on the same day to the Supreme Court (Finlay C.J., Hederman and
McCarthy JJ.) that the order of the Divisional Court of the High Court discharging the interlocutory injunctions
be stayed pending the hearing of the application to extend such stay. This was granted and by notice of motion
dated the 13th February, 1987, the plaintiff applied to continue the interlocutory injunctions granted on the 24th
December, 1986, by way of appeal from the order of the Divisional Court of the High Court dated 12th
February, 1987, discharging those interlocutory injunctions.
The interlocutory issues were heard before the Supreme Court (Finlay C.J., Henchy, Griffin, Hederman
and McCarthy JJ.) on the 17th and 18th February, 1987.
Paul Callan S.C. for the plaintiff: The plaintiff seeks merely to maintain the status quo until the Court has
had an opportunity of giving a final decision on a fundamental and important constitutional matter in the
context of the Constitution, basic European Community law and public international law. If the interlocutory
injunction were not maintained, then even if the plaintiff succeeded on the ultimate issues, he would be left
without any legal or constitutional remedy. Furthermore, if the plaintiff were to succeed on the final issues he
would be left without any remedy before the Court of Justice of the European Communities, unless the
defendants were restrained from ratifying the Single European Act. The balance of convenience in the context
of a constitutional matter of this nature lies completely on the side of maintaining the status quo. In the absence
of such maintenance, the matter would have passed outside the State, and the Constitution will have been
amended by unconstitutional means, which amendment will be irremediable. Once enacted, the Single
European Act would enjoy constitutional immunity. Regulations or directives made under article 189 of the
Treaty of Rome establishing the European Economic Community would have immunity under the second limb
of Article 29, s. 4, sub-s. 3 of the Constitution. The plaintiff has a right under the Constitution to assert the
integrity of the Constitution and to go to the guardians of the Constitution and assert the right to have it
vindicated. The plaintiff suffers damage in being deprived of the exercise of his right to vote in a referendum,
which is the only proper way to amend the

[1987] Crotty v. An Taoiseach 762


1 I.R. Barrington J. S.C.
Constitution. The primacy of European Community law is well established: Amministrazione delle Finanze
dello Stato v. Simmenthal SpA (Case 106/77) and Acciaierie San Michele SpA v. High Authority (Cases 9/65
and 58/65) .In the case of breach by Ireland of that primacy of European Community law, then Ireland would be
accountable to the Communities before the Court of Justice of the European Communities.
Aidan Browne S.C. following for the plaintiff: There is no obligation on the State to ratify the Single
European Act. Article 29, s. 4, sub-s. 3 of the Constitution means that it will be possible for laws enacted, acts
done or measures adopted by the State to have the force of law in the State consequent upon the ratification of
the Single European Act. This is a fair issue to be tried.
T.K. Liston S.C. for the defendants: The interlocutory injunction was a discretionary order in the first case.
This Court ought not to substitute its own discretion for the discretion exercised by the Divisional Court: see
Hadmor Productions Ltd. v. Hamilton and Others [1982] 1 All E.R. 1042, particularly the speech of Lord
Diplock at page 1046.
There is no sound basis for the view that, once ratified, the repugnancy to the Constitution of any particular
act is still not challengeable; it is still and always will be a matter for this Court.
Were the plaintiff to succeed, it would mean that any individual could, by litigation, stop the State's
involvement in international agreements, even in the absence of any special standing of that individual: see
Gouriet v.Union of Post Office Workers .
John Cooke S.C. following for the defendants: No stateable case for an interlocutory injunction can be
made by the plaintiff because it is based on a logical impossibility. The plaintiff contends that, if ratified, the
Constitution will be amended in an unconstitutional manner. In the defendant's submission, this is not possible.
Either there is a valid and effective amendment according to its own inbuilt mechanism, or none at all. The flaw
lies in failing to distinguish between ratification of an international agreement, on the one hand, and the step of
incorporating the contents of the ratified international agreement into the domestic law of the State by which it
becomes amenable to the jurisdiction of the courts.
Eoin McGonigal S.C. for the plaintiff in reply: The act of deposit of the instrument of ratification is
irreversible. It involves the giving away of the sovereign right of this State to legislate for itself: Commission v.
Ireland(Case 151/81) .

Crotty v. An Taoiseach
[1987] 763
Finlay C.J.; Henchy J.; Griffin
1 I.R. S.C.
J.; Hederman J.; McCarthy J.

18th February 1987


Finlay C.J.

This is an appeal from a refusal of the Divisional Court to permit the continuation of an interlocutory
injunction restraining the Government from ratifying the Single European Act and seeking to continue that
interlocutory injunction until the final hearing of the case. The first issue is whether the plaintiff has established
a fair issue to be tried as to the effect of ratification within the provisions of Article 29, s. 4, sub-s. 3 of the
Constitution. My view is that it is so established, but I express no view on the weight of the arguments.
As to the second question, whether the balance of convenience justifies the granting of an interlocutory
injunction, the balance of convenience in the context of the Constitution is exceptional and considerations
different to those of the ordinary injunction apply. If the interlocutory injunction sought by the plaintiff were not
granted, then the Government's act of ratification would deprive this Court of its jurisdiction or power to grant
to the plaintiff the remedies necessary to protect his constitutional rights. If that submission is correct, a fair
argument has been made out and it constitutes what, in my view, would justify making an exception, given a
reluctance to interfere with the Executive. I am satisfied that in order to do justice to the parties the injunction
should continue.

Henchy J.
I agree.

Griffin J.
I agree.

Hederman J.
I agree.

McCarthy J.
I agree.

The plaintiff then appealed on the merits and the defendant cross-appealed against the refusal of the Divisional
Court to make any order as to costs. The appeal on the merits was heard before the Supreme Court on the 25th,
26th, 27th February and 2nd, 3rd and 4th March, 1987.
Paul Callan S.C. , Aidan Browne S.C. and Eoin McGonigal S.C. (with them Antonia O'Callaghan and
Seamus Ó Tuathail ó tuathail ) for the plaintiff referred to The Electoral (Amendment) Bill, 1983; Boland v.
An Taoiseach ; The State (Gilliland) v. Governor of Mountjoy Prison ; In re Ó Laighléis ; Gloverv.
B.L.N. ; Cahill v. Sutton ; Reg. v. H.M. Treasury, Ex p. Smedley ; Acciaierie San Michele SpA v. High Authority
(Cases 9/65 and 58/65) ;

[1987] Crotty v. An Taoiseach 764


1 I.R. McCarthy J. S.C.
Wavin Irish Pipes Limited v. Hepworth Iron Co. ; J. Nold KG v. Commission(Case 4/73) and Internationale
Handelsgessellschaft mbH v. Einfuhr- und Vorratsstelle Getreide (Case 11/70) .
T.K. Liston S.C. , Eoghan Fitzsimons S.C. and John Cooke S.C. (with them James O'Reilly ) for the
defendants referred to Commission v. United Kingdom: Re Tachographs (Case 128/78) ; Reyners v. Belgium
(Case 2/74) and Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon Case) (Case
120/78) . If it should later appear the Single European Act does have an unconstitutional interpretation, then it
remains open to this Court not to give effect to it. The only part of the Single European Act which can
supplement, or indeed modify, the existing treaties is Title II. The State is bound by Title II not as a Member
State of the European Communities, but as a High Contracting Party. There is nothing in Title III to bind the
State to more than merely consult with other signatory States, any more than this State is bound, or its
sovereignty detracted from, by accession to the United Nations.
Walsh J.: Would not making Title III part of our domestic law require amendment of the Constitution?
John Cooke S.C.: It would seem to be superfluous to want to incorporate Title III into domestic law.
Henchy J.: Is it the case that the validity of Title III depends on Article 29, s. 5 of the Constitution?
Finlay C.J.: Article 28, s. 4, provides that the executive power of the State in or in connection with its
external relations shall be exercised by or on the authority of the Government.
John Cooke S.C.: The Government could not be directed by the Court to consult with the High Contracting
Parties under Title III in a given case or alternatively restrained for failing to consult them.
Hederman J.: What would be the position if the Government were to ratify the Single European Act, but
excluding Title III?
John Cooke S.C.: Title III is purely a matter for discussions between States. There is no question of Irish
foreign policy being decided against us by some majority of States who do not agree with the position we wish
to take. If the day were reached when it was sought to convert the European Communities into some kind of
political union, then a referendum might well be required. The enactment of the Single European Act is in any
event sanctioned by Article 29, s. 4, sub-s. 1 of the Constitution in conjunction with Article 29, section 5.
While the rights affected by Community law are mainly of an economic and commercial nature, the legal
heritage of the European Communities accepts that there are superior fundamental rights and European
Community law will not permit Community legislation to be applied to disregard

[1987] Crotty v. An Taoiseach 765


1 I.R. McCarthy J. S.C.
those fundamental rights: see Internationale Handelsgesellschaft mbH v.Einfuhr - und Vorratsstelle Getreide
(Case 11/70) and Conegate Ltd. v.Customs and Excise Commissioners (Case 121/85) .
T.K. Liston S.C. for the defendants following: The Divisional Court of the High Court accepted that it was
not open to it to consider the validity of the Single European Act in the instant case, but that otherwise it would
have full power to do so, if an individual was able to establish that his personal rights were affected or
threatened. The mere fact that the plaintiff's challenge fails, would not prevent an individual whose rights were
affected or threatened from mounting a new challenge to the Single European Act.
It is not the function of judicial organs of State to interfere with the exercise of its functions by Dáil
Éireann . A law is invalid under the Constitution only to the extent of its repugnancy. A referendum is
normally initiated and passed with the expressed view of amending the Constitution. Where Article 28, s. 2
provides that the executive power of the State shall be exercised by or on the authority of the Government,
subject to the provisions of the Constitution, this can only be taken to refer to subject to express provisions of
the Constitution.
An international agreement involving a charge on public funds but which has not been placed before Dáil
Éireann is not binding on the State at all: The State (Gilliland) v. Governor of Mountjoy Prison .
The Court not only does not have the power but also has no responsibility to interfere with the
Government's exercise of its own responsibilities. Our Constitution has similarly left the judiciary free from
executive control and free from the duty normally to control the Executive. Nevertheless it is always open to the
Court to interfere with legislative action where an individual can show actual or potential interference with his
own rights, but in this case not only has the plaintiff no more locus standithan any other individual, regard being
had to Cahill v. Sutton , but the plaintiff cannot point to any apprehended interference of his rights by either the
Single European Act or the European Communities (Amendment) Act, 1986.
Paul Callan S.C. in reply: Article 29, s. 4, sub-s. 3 is an exception to the Constitution. The obligations of
membership of the European Communities were taken on by the State, with the permission of the people, by the
Treaty of Accession. (He further cited Rutili v. Ministre de l'Interieur(Case 36/75) ).
Cur. adv. vult.
The decision of the Supreme Court on the validity of the European Communities (Amendment) Act, 1986,
having regard to the provisions of

[1987] Crotty v. An Taoiseach 766


1 I.R. McCarthy J.; Finlay C.J. S.C.
the Constitution, in accordance with Article 34, s. 4, sub-s. 5 was pronounced by Finlay C.J.

9th April 1987


Finlay C.J.

Part of the plaintiff's appeal in this case is against the dismiss by the High Court of his claim for a
declaration that the European Communities (Amendment) Act, 1986, is invalid having regard to the provisions
of the Constitution. The Court in this decision deals with that issue only.
The European Communities (Amendment) Act, 1986, ("the Act of 1986") purports to amend the European
Communities Act, 1972, and to bring into the domestic law of the State Article 3, s. 1; Title II; Article 31;
Article 32; and in part Articles 33 and 34 of the Single European Act ("the SEA"). The Act of 1986 was enacted
by the Oireachtas in December, 1986, but does not come into effect until the making of a statutory order which
has not yet been made. The other provisions of the SEA largely consisting of the provisions on European
cooperation in the sphere of foreign policy contained in Title III are not affected by the Act of 1986 and do not
fall to be dealt with in this decision of the Court.
In the High Court the plaintiff's claim was rejected on the grounds that because the SEA had not yet been
ratified by the State and because the Act of 1986 had not yet been brought into effect the plaintiff failed to
establish that he had a locus standi to challenge the validity of the Act of 1986 having regard to the provisions
of the Constitution. The Court is satisfied, in accordance with the principles laid down by the Court in Cahill v.
Sutton [1980] I.R. 269, that in the particular circumstances of this case where the impugned legislation, namely
the Act of 1986, will if made operative affect every citizen, the plaintiff has a locus standi to challenge the Act
notwithstanding his failure to prove the threat of any special injury or prejudice to him, as distinct from any
other citizen, arising from the Act.
The net issue therefore here arising is as to whether the provisions of Article 29, s. 4, sub-s. 3 of the
Constitution authorise the ratification by the State of the provisions of the SEA intended to amend the Treaties
establishing the European Communities. These provisions are the Articles and Title of the SEA referred to in the
Act of 1986. Article 29, s. 4, sub-s. 3 reads as follows:—
"3 The State may become a member of the European Coal and Steel Community (established by Treaty
signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty
signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established
by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates
laws enacted, acts done or measures adopted by the State necessitated

[1987] Crotty v. An Taoiseach 767


1 I.R. Finlay C.J. S.C.
by the obligations of membership of the Communities or prevents laws enacted, acts done or
measures adopted by the Communities, or institutions thereof, from having the force of law in the
State."
This provision was enacted as the Third Amendment to the Constitution by virtue of a referendum held in
1972 and permitted the State to join the European Communities. The Court is satisfied that the first sentence of
this provision authorised the State to join three Communities identified as to each by reference to the Treaty
which established it.
It is clear and was not otherwise contended by the defendants that the ratification by the State of the SEA
(which has not yet taken place) would not constitute an act "necessitated by the obligations of membership of
the Communities". It accordingly follows that the second sentence in Article 29, s. 4, sub-s. 3 of the
Constitution is not relevant to the issue as to whether the Act of 1986 is invalid having regard to the provisions
of the Constitution. It was contended on behalf of the plaintiff that any amendment of the Treaties establishing
the Communities made after the 1st January, 1973, when Ireland joined those Communities would require a
further amendment of the Constitution. It was contended on behalf of the defendants that the authorisation
contained in the first sentence of Article 29, s. 4, sub-s. 3 was to join Communities which were established by
Treaties as dynamic and developing entities and that it should be interpreted as authorising the State to
participate in and agree to amendments of the Treaties which are within the original scope and objectives of the
Treaties. It is the opinion of the Court that the first sentence in Article 29, s. 4, sub-s. 3 of the Constitution must
be construed as an authorisation given to the State not only to join the Communities as they stood in 1973, but
also to join in amendments of the Treaties so long as such amendments do not alter the essential scope or
objectives of the Communities. To hold that the first sentence of Article 29, s. 4, sub-s. 3 does not authorise any
form of amendment to the Treaties after 1973 without a further amendment of the Constitution would be too
narrow a construction; to construe it as an open-ended authority to agree, without further amendment of the
Constitution, to any amendment of the Treaties would be too broad. The issue then arises as to whether the
effect of the amendments to the Treaties proposed by the SEA is such as would bring the introduction of them
into the domestic law by the Act of 1986 outside the authorisation of Article 29, s. 4, sub-s. 3 as above
construed.
The only provisions affecting the European Coal and Steel Community proposed in the SEA are Articles 4
and 5 thereof, and the only provisions affecting the European Atomic Energy Community proposed in the SEA
are Articles 26 and 27 thereof. These Articles have essentially the same effect as Articles 11 and 12 with regard
to the European Economic Community (the EEC). All of these Articles give a power to the European

[1987] Crotty v. An Taoiseach 768


1 I.R. Finlay C.J. S.C.
Council at the request of the Court of Justice of the European Communities to attach to that Court a court of
first instance for the trial of certain classes of cases. It is sufficient, therefore, for the purpose of this decision to
consider the EEC Treaty (the Treaty of Rome) and the proposed amendments and additions to it.
The Act of 1986 enjoys the presumption of constitutional validity, so the onus is on the plaintiff to show
that it is in some respect invalid, having regard to the provisions of the Constitution. The contention made on
behalf of the plaintiff on this issue was under four headings.
(1) Changes which are proposed in the decision-making process of the Council in six instances from
unanimity to a qualified majority were asserted to be an unauthorised surrender of sovereignty.
(2) The power given to the Council by unanimous decision at the request of the Court of Justice of the
European Communities (the European Court) to attach to it a court of first instance with an appeal
from the latter on questions of law to the European Court was said to be an unauthorised surrender of
the judicial power.
(3) It is submitted that Article 20 dealing with cooperation in economic and monetary policy, Article 21
dealing with social policy, Article 23 dealing with economic and social cohesion, Article 24 dealing
with research and technological development, and Article 25 dealing with the environment, all add
new objectives to the Treaty of Rome which make them additions to the original Treaty which are
outside the existing constitutional authorisation.
(4) It is submitted that powers granted to the Council by Articles 18 and 21 of the SEA would enable it by
a qualified majority to direct the approximation of laws concerning the provision of services and
concerning the working environment, health and safety of workers which amount to new powers
outside the existing constitutional authorisation and which could encroach on existing guarantees of
fundamental rights under the Constitution.
In discharging its duty to interpret and uphold the Constitution the Court must consider the essential nature
of the scope and objectives of the Communities as they must be deemed to have been envisaged by the people
in enacting Article 29, s. 4, sub-section 3. It is in the light of that scope and those objectives that the
amendments proposed by the SEA fall to be considered.
Article 2 of the Treaty of Rome provided as follows:—
"The Community shall have as its task, by establishing a common market and progressively approximating
the economic policies of Member States, to promote throughout the Community a harmonious development
of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising
of the standard of living and closer relations between the States belonging to it."

[1987] Crotty v. An Taoiseach 769


1 I.R. Finlay C.J. S.C.

Article 3 of that Treaty set out what the activities of the Community should include for the purposes stated
in Article 2, and amongst these activities are:—
"(c) the abolition, as between Member States, of obstacles to freedom of movement for persons, services
and capital;
(f) the institution of a system ensuring that competition in the common market is not distorted;
(g) the application of procedures by which the economic policies of Member States can be coordinated and
disequilibria in their balances of payments remedied;
(h) the approximation of laws of Member States to the extent required for the proper functioning of the
common market;
(i) the creation of a European Social Fund in order to improve employment opportunities for workers and
to contribute to the raising of their standard of living;
(j) the establishment of a European Investment Bank to facilitate the economic expansion of the
Community by opening up fresh resources;
(k) the association of the overseas countries and territories in order to increase trade and to promote jointly
economic and social development."
For the purpose of attaining its objectives and implementing its provisions the Treaty of Rome established
certain institutions. Amongst these is the Court of Justice of the European Communities which was established
to ensure that in the interpretation and the application of the Treaty the law is observed. The decisions of that
Court on the interpretation of the Treaty and on questions covering its implementation take precedence, in case
of conflict, over the domestic law and the decisions of national courts of Member States.
Another institution of the EEC is the Council, whose decisions have primacy over domestic law and which
for the purpose of ensuring that the objectives of the Treaty are attained is charged with ensuring the co-
ordination of the general economic policies of the Member States. Some of its decisions must be unanimous,
others may be taken by qualified majority, and still others by simple majority. The capacity of the Council to
take decisions with legislative effect is a diminution of the sovereignty of Member States, including Ireland, and
this was one of the reasons why the Third Amendment to the Constitution was necessary. Sovereignty in this
context is the unfettered right to decide: to say yes or no. In regard to proposals coming before the Council
which the State might oppose, unanimity is a valuable shield. On the other hand, in proposals which the State
might support, qualified or simple majority is of significant assistance. In many instances the Treaty of Rome
provided a requirement that a decision on a particular topic should be unanimous, but would after the expiry of
a particular stage or of the transitional period require only a qualified

[1987] Crotty v. An Taoiseach 770


1 I.R. Finlay C.J. S.C.
majority. The Community was thus a developing organism with diverse and changing methods for making
decisions and an inbuilt and clearly expressed objective of expansion and progress, both in terms of the number
of its Member States and in terms of the mechanics to be used in the achievement of its agreed objectives.
Having regard to these considerations, it is the opinion of the Court that neither the proposed changes from
unanimity to qualified majority, nor the identification of topics which while now separately stated, are within
the original aims and objectives of the EEC, bring these proposed amendments outside the scope of the
authorisation contained in Article 29, s. 4, sub-s. 3 of the Constitution. As far as Ireland is concerned, it does not
follow that all other decisions of the Council which now require unanimity could, without a further amendment
of the Constitution, be changed to decisions requiring less than unanimity.
The power of the Council to attach to the European Court a court of first instance with limited jurisdiction
which would be subject to appeal on questions of law to the European Court, does not affect in any material
way the extent to which the judicial power has already been ceded to the European Court. This Court is
therefore of the opinion that the establishment of an additional court, if it occurs, has not been shown to exceed
the constitutional authorisation.
The existing Treaty contains various provisions dealing with the approximation of laws in general, with
freedom for the provision of services in the Member States, with working conditions and with the prevention of
occupational accidents and diseases. The proposals contained in Articles 18 and 21 of the SEA have not been
shown to contain new powers given to the Council which alter the essential character of the Communities.
Neither has it been shown that they create a threat to fundamental constitutional rights. Therefore, it is the
opinion of the Court that the appeal under this heading also fails.
For the foregoing reasons, it has not been shown to the satisfaction of the Court that any of the provisions
of the European Communities (Amendment) Act, 1986, are invalid having regard to the provisions of the
Constitution.
On the remaining issues of the appeal the following judgments were then delivered:—

9th April 1987


Finlay C.J.

In addition to the appeal against the dismiss of his claim for a declaration that the European Communities
(Amendment) Act, 1986, is invalid having regard to the provisions of the Constitution, which has been

[1987] Crotty v. An Taoiseach 771


1 I.R. Finlay C.J. S.C.
dealt with in the decision of the Court, the plaintiff has appealed against the dismiss of a claim for a declaration
and injunction restraining the Government from ratifying the Single European Act ("the SEA"). The grounds for
that claim, other than those already dealt with by the decision concerning the Act of 1986, are that the
provisions contained in Article 30 under Title III of the SEA are inconsistent with the Constitution.
These provisions are entitled "Provisions on European cooperation in the sphere of foreign policy." They
do not purport to constitute amendments of or additions to any of the Treaties establishing the Communities.
Adherence to these provisions of the SEA by the State could not be an act necessitated by any obligation of
membership by the State of the Communities nor could such provisions be laws enacted, acts done or measures
adopted by the Communities or institutions thereof. Article 29, s. 4, sub-s. 3 of the Constitution accordingly
does not apply to the provisions concerning European Political Cooperation (EPC) contained in Article 30 under
Title III of the Single European Act.
Article 29, s. 6 of the Constitution therefore applies to those provisions since they can derive no immunity
from it by virtue of Article 29, s. 4, sub-s. 3 and they do not become part of the domestic law of the State unless
and until the Oireachtas validly so determines. The Oireachtas has passed no law purporting to bring these
provisions into the domestic law of the State. The provisions of the SEA contained in Article 30 therefore rank
as part of an international treaty negotiated by the Government but not yet ratified, the terms of which have
been approved by resolution of Dáil Éireann but which has not been brought into our domestic law.
Article 30 of the SEA is divided into twelve sub-articles. It constitutes an agreement between states
adhering to the SEA, described in Title III as"High Contracting Parties", which are in fact the Member States of
the Communities. From the preamble to the SEA and from the terms of Article 30 themselves, it is clear that the
agreements contained in that Article are arrived at with the possible ultimate objective of a form of European
political union between the Member States of the Communities as an addition to the existing economic union
between them. There can be no doubt that if that aim were ever achieved it would constitute an alteration in the
essential scope and objectives of the Communities to which Ireland could not agree without an amendment of
the Constitution. Article 30 in summary provides for:—
1. Cooperation in the formation of foreign policy between the parties, with the aim of formulating and
putting into effect a joint foreign policy.
2. Cooperation with the Commission of the Communities.
3. Cooperation with the Parliament of the Communities.
4. Cooperation on European security.
5. The adoption of common positions at international conferences and in international institutions.

[1987] Crotty v. An Taoiseach 772


1 I.R. Finlay C.J. S.C.

6. The state holding the Presidency of the Council of the Communities at any time shall hold the
Presidency of the EPC which shall be responsible for initiating action and representing the position of
Member States with third countries in relation to EPC activities.
7. A Secretariat is to be established, the members of which will have diplomatic status.
The detailed terms of these provisions impose obligations to consult; to take full account of the position of
other partners; to ensure that common principles and objectives are gradually developed and defined; as far as
possible to refrain from impeding the formation of a consensus and the joint action which this could produce; to
be ready to cooperate policies more closely on the political aspects of security. They do not impose any
obligations to cede any national interest in the sphere of foreign policy. They do not give to other High
Contracting Parties any right to override or veto the ultimate decision of the State on any issue of foreign policy.
They impose an obligation to listen and consult and grant a right to be heard and to be consulted.
The net issue which arises in this part of this appeal is whether, having regard to the general nature and
effect of Article 30 of the SEA and its status in relation to our law as above outlined, this Court is entitled under
the Constitution, at the instance of the plaintiff, to intervene so as to prevent the Government from ratifying this
treaty. It is an issue of a fundamental nature, the importance of which, in my view, transcends by far the
significance of the provisions of the SEA. The separation of powers between the legislature, the executive and
the judiciary, set out in Article 6 of the Constitution, is fundamental to all its provisions. It was identified by the
former Supreme Court in Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and has since
been repeatedly acknowledged and implemented by this Court. It involves for each of the three constitutional
organs concerned not only rights but duties also; not only areas of activity and function, but boundaries to them
as well.
With regard to the legislature, the right and duty of the Courts to intervene is clear and express.
1. Article 15, s. 4, Article 34, s. 3, sub-s. 2 and Article 34, s. 4, sub-s. 4 of the Constitution vest in the High
Court and, on appeal, in this Court the right and duty to examine the validity of any impugned enactment of the
Oireachtas and, if it be found inconsistent with the Constitution, to condemn it in whole or in part.
2. Article 26 of the Constitution confers on this Court the duty, upon the reference to it by the President of
a Bill passed or deemed to have been passed by both houses of the Oireachtas, to decide whether such Bill or
any specified provision or provisions of such Bill is or are repugnant to the Constitution or to any provision
thereof.
3. The Courts do not, in my opinion, have any other right to intervene in the enactment of legislation by
the Oireachtas.

[1987] Crotty v. An Taoiseach 773


1 I.R. Finlay C.J. S.C.

With regard to the executive, the position would appear to be as follows:— This Court has on appeal from
the High Court a right and duty to interfere with the activities of the executive in order to protect or secure the
constitutional rights of individual litigants where such rights have been or are being invaded by those activities
or where activities of the executive threaten an invasion of such rights.
This right of intervention is expressly vested in the High Court and Supreme Court by the provisions of
Article 34, s. 3, sub-s. 1 and Article 34, s. 4, sub-s. 3 of the Constitution and impliedly arises from the form of
the judicial oath contained in Article 34, s. 3, sub-s. 1 of the Constitution.
Article 29, s. 4, sub-s. 1 of the Constitution provides:—
"The executive power of the State in or in connection with its external relations shall in accordance with
Article 28 of this Constitution be exercised by or on the authority of the Government."
Article 28, s. 2 of the Constitution provides:—
"The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or
on the authority of the Government."
The combined effect of these two constitutional provisions clearly is that the executive power of the State
in connection with its external relations shall be exercised by or on the authority of the Government but that in
so exercising that power the Government is subject to the provisions of the Constitution.
Article 29, s. 5, sub-s. 1 provides:—
"Every international agreement to which the State becomes a party shall be laid before Dáil Éireann ."
Article 29, s. 5, sub-s. 2 provides:—
"The State shall not be bound by any international agreement involving a charge upon public funds unless
the terms of the agreement shall have been approved by Dáil Éireann ."
I have already referred to the provisions of s. 6 of Article 29 of the Constitution vesting in the Oireachtas
the right to determine the extent and manner in which an international agreement shall be part of the domestic
law of the State. From these constitutional provisions, it seems reasonable to infer a scheme under the
Constitution that by virtue of Article 29, s. 5, sub-s. 1, Dáil Éireann should have a primary control over the
exercise by the Government of its executive power in relation to entering into international agreements, and that
under Article 29, s. 5, sub-s. 2 no international agreement of major importance being one that involved a charge
upon public funds could bind the State without the approval of Dáil Éireann as to its terms. This scheme is
consistent with the provisions of Article 28, s. 3, sub-s. 1 which provide:—
"War shall not be declared and the State shall not participate in any war save with the assent of Dáil
Éireann ."
A declaration of war and participation in war is necessarily part and parcel

[1987] Crotty v. An Taoiseach 774


1 I.R. Finlay C.J. S.C.
of the external relations of the State. This provision again emphasises the control by Dáil Éireann of the
Government in its exercise of executive power in external relations.
The overall provisions concerning the exercise of executive power in external relations do not contain any
express provision for intervention by the Courts. There is nothing in the provisions of Articles 28 and 29 of the
Constitution, in my opinion, from which it would be possible to imply any right in the Courts in general to
interfere in the field or area of external relations with the exercise of an executive power. This does not mean
that the executive is or can be without control by the Courts in relation to carrying out executive powers even in
the field of external relations. In any instance where the exercise of that function constituted an actual or
threatened invasion of the constitutional rights of an individual, the Courts would have a right and duty to
intervene.
In this case where the plaintiff adduced no evidence at the hearing in the High Court but relied on matters
pleaded and not denied, I am satisfied that he has not established any actual or threatened invasion of any
constitutional right enjoyed by him as an individual arising from the terms of Article 30 of the Single European
Act.
It was submitted that, whereas the plaintiff acknowledged that the Courts had no function to intervene with
the Executive in the formation or statement of policy, either in external relations or in any other part of
Government activity, a difference arose where the declaration of policy involved, as it is stated Article 30 of the
SEA involves, a commitment to other states for consultation, discussion and an endeavour to coincide policies. I
cannot accept this distinction. It appears probable that under modern conditions a state seeking cooperation with
other states in the sphere of foreign policy must be prepared to enter into not merely vague promises but actual
arrangements for consultation and discussion. I can find no warrant in the Constitution for suggesting that this
activity would be inconsistent with the Constitution and would, as is suggested, presumably in each individual
instance, require a specific amendment of the Constitution.
I am confirmed in the view which I have reached with regard to the constitutional limits of the intervention
by the Courts in the exercise by the Government of its executive functions by the decision of this Court in
Boland v. An Taoiseach [1974] I.R. 338. FitzGerald C.J., in the course of his judgment in that case, at p. 362,
stated as follows:—
"Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or
interfere with the exercise by the Government of its executive functions, unless the circumstances are such
as to amount to a clear disregard by the Government of the powers and duties conferred on it by the
Constitution."
In the course of his judgment in the same case, Budd J., at p. 366,

[1987] Crotty v. An Taoiseach 775


1 I.R. Finlay C.J. S.C.
stated as follows:—
"The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with
justiciable controversies between citizen and citizen or the citizen and the State and matters pertaining
thereto. Such matters have nothing to do with matters of State policy. Viewing the matter from another
angle, as to the nature of any relief that could properly be claimed in proceedings of this nature, I ask
whether it could be said that the Courts could be called upon to pronounce adversely or otherwise on what
the Government proposed to do on any matter of policy which it was in the course of formulating. It would
seem that that would be an attempted interference with matters which are part of the functions of the
Executive and no part of the functions of the judiciary. From a practical standpoint alone, what action
would be open to the Courts? The Courts could clearly not state that any particular policy ought not to be
pursued.
The Constitution goes further in indicating how far the policies involved in government decisions as to
policy such as this are removed from the purview of the Courts in that it makes the Government responsible
to the Dáil which can support or oppose those policies and review them. Ultimately, there is the
responsibility of the Government to the people who must be consulted by way of referendum where any
change of the Constitution is contemplated."
Griffin J., in the course of his judgment in that case, at p. 370, stated as follows:—
"In the event of the Government acting in a manner which is in contravention of some provisions of the
Constitution, in my view it would be the duty and the right of the Courts, as guardians of the Constitution,
to intervene when called upon to do so if a complaint of a breach of any of the provisions of the
Constitution is substantiated in proceedings brought before the Courts."
I do not consider that it has been established that adherence by the State to the terms of Article 30 of the
SEA amounts, in the words of FitzGerald C.J., "to a clear disregard by the Government of the powers and duties
conferred on it by the Constitution." Furthermore, I interpret the decision of Griffin J. in Boland v. An
Taoiseach [1974] I.R. 338 as being consistent with the view already expressed by me that where an individual
person comes before the Courts and establishes that action on the part of the Executive has breached or
threatens to breach one or other of his constitutional rights that the Courts must intervene to protect those rights
but that otherwise they can not and should not.
I, therefore, am satisfied that this appeal on this issue should be dismissed.

[1987] Crotty v. An Taoiseach 776


1 I.R. Walsh J. S.C.

Walsh J.
This part of the proceedings deals only with Title III of the Single European Act. The heading of that title
is "Provisions on European cooperation in the sphere of foreign policy." This title is not included in the
European Communities (Amendment) Act, 1986. Neither is the preamble to the Single European Act
incorporated in or referred to by the said Act. The terms of the preamble are however relevant to the issue now
before the Court concerning Title III. In its first paragraph the preamble refers to the will to continue work to
transform relations between the Member States of the European Communities into a European Union. It goes on
to say that the signatories are resolved to implement "this European Union" firstly on the basis of the
Communities operating according to their own rules and, secondly, of European Cooperation among the
Signatory States "in the sphere of foreign policy" and to invest this union "with the necessary means of action".
It is abundantly clear, and indeed was not contested in the present case, that so far as Ireland is concerned the
creation of a European Union which would include Ireland would require an amendment of the Constitution.
Title III of the Single European Act, which in reality is itself a separate treaty although not so in form, does not
purport to create a European Union; but on the other hand openly acknowledges that such is the objective.
The preamble goes on to state that the parties are determined "to work together to promote democracy on
the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the
Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter,
notably freedom, equality and social justice." So far as the latter aspirations are concerned no objection could be
taken to them having regard to the fact that the preamble of the Constitution of Ireland sets out that one of the
aims of the Constitution is to safeguard the dignity and freedom of the individual and to assist in establishing
concord with other nations. Article 5 of the Constitution says that Ireland is a sovereign, independent and
democratic state. Article 29, s. 1 of the Constitution contains the affirmation that Ireland is devoted to the ideal
of peace and friendly co-operation amongst nations founded on international justice and international morality
(see the Irish language text of the Constitution).
The preamble to the Single European Act further refers to "the responsibility incumbent upon Europe to
aim at speaking ever increasingly with one voice and to act with consistency and solidarity in order more
effectively to protect its common interests and independence, in particular to display the principles of
democracy and compliance with the law and with human rights to which they are attached, so that together they
may make their own contribution to the preservation of international peace and security in accordance with the
undertaking entered into by them within the

[1987] Crotty v. An Taoiseach 777


1 I.R. Walsh J. S.C.
framework of the United Nations Charter." The sentiments there expressed are also unexceptionable as a
general objective of the European Community and of the individual Member States, and as such would appear
to be in no way incompatible with the aims and aspirations of the Constitution in those fields.
It is however the treaty provisions set out in Title III which have given rise to the plaintiff's claim for an
order to restrain the Government from ratifying the treaty already executed by them. Article 33, s. 1 of the
Single European Act provides that it will be ratified "by the High Contracting Parties in accordance with their
respective constitutional requirements." In essence therefore this part of the case is concerned with whether or
not, as a matter of Irish law, the method of ratification proposed by the Government is in accordance with the
Constitution, namely, whether it can now be ratified on the basis that its terms have been approved in their
entirety by Dáil Éireann in accordance with Article 29, s. 5, sub-s. 2 of the Constitution.
This brings me to a consideration of the relevant provisions of the Constitution and the treaty-making
powers of the executive organ of government (the "Government"). Article 6 of the Constitution refers to "all
powers of government" and goes on to differentiate between the legislative, executive and judicial organs of
government. It refers to the powers of government as being derived "under God, from the people, whose right it
is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to
the requirements of the common good." It must follow therefore that all the powers of government are to be
exercised according to the requirements of the common good. Section 2 of the same Article provides that these
powers of government are exercisable"only by or on the authority of the organs of State established by this
Constitution." So far as external or foreign relations are concerned Article 29, s. 4, sub-s. 1 of the Constitution
provides that "the executive power of the State in or in connection with its external relations shall in accordance
with Article 28 of this Constitution be exercised by or on the authority of the Government." Article 28, s. 2
provides that "the executive power of the State shall, subject to the provisions of this Constitution, be exercised
by or on the authority of the Government."
The Constitution confers upon the Government the whole executive power of the State, subject to certain
qualifications which I will deal with later, and the Government is bound to take care that the laws of the State
are faithfully executed. In its external relations it has the power to make treaties, to maintain diplomatic
relations with other sovereign States. The Government alone has the power to speak or to listen as a
representative of the State in its external relations. It is the Government alone which negotiates and makes
treaties and it is the sole organ of the State in the field of international affairs. For these functions it does not
require as a basis for

[1987] Crotty v. An Taoiseach 778


1 I.R. Walsh J. S.C.
their exercise an Act of the Oireachtas. Nevertheless the powers must be exercised in subordination to the
applicable provisions of the Constitution. It is not within the competence of the Government, or indeed of the
Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies
unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are
not empowered to act free from the restraints of the Constitution. To the judicial organ of government alone is
given the power conclusively to decide if there has been a breach of constitutional restraints.
The powers of external sovereignty on the part of the State do not depend on the affirmative grant of this in
the Constitution. They are implicit in the provisions of Article 5 of the Constitution. The State would not be
completely sovereign if it did not have in common with other members of the family of nations the right and
power in the field of international relations equal to the right and power of other states. These powers of the
State include the power to declare war or to participate in a war, to conclude peace, to make treaties, and
maintain diplomatic relations with other states.
However the exercise of the power is limited. In the first instance the Government alone has the power, as
already mentioned, to speak and listen as the representative of the State, and, subject to the constitutional
restraints, to make treaties. Article 28, s. 3, sub-s. 1 of the Constitution provides that war shall not be declared
and the State shall not participate in any war save with the assent of Dáil Éireann . That is one express
constitutional prohibition on the exercise by the Government of its powers in its international relations. So far as
treaties or international agreements are concerned Article 29, ss. 5 and 6 deal further with the matter. They
provide that (a) every international agreement to which the State becomes a party shall be laid before Dáil
Éireann , (b) the State shall not be bound by any international agreement involving a charge upon public
funds unless the terms of the agreement shall have been approved by Dáil Éireann (save where the
agreements or conventions are of a technical and administrative character) and (c) no international agreement
shall be part of the domestic law of the State save as may be determined by the Oireachtas. As a general rule
neither the Government nor the Oireachtas can be restrained until their intentions are translated into acts. In
proper cases they are subject to judicial cognisance, and judicial review and restraint. Thus statements of the
Government policy as such are not restrainable by the Courts. But if the policies are translated, for example,
into treaties then different considerations arise.
In the present case counsel for the defendants submitted that even in the case of treaties the Courts are not
empowered to interfere unless the treaties are translated into domestic legislation. To do so, the defendants
asserted, would be for one of the organs of State to trespass upon the

[1987] Crotty v. An Taoiseach 779


1 I.R. Walsh J. S.C.
functions of another in a manner unauthorised by the Constitution. The defendants relied upon the decision of
the former Supreme Court of Justice in Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 in
support of this proposition. That was a case in which legislation was impugned. The power to review legislation
is expressly granted by the Constitution. What the Court was doing in that case was to interfere in what it
regarded and described at p. 84 of the report as "an unwarrantable interference by the Oireachtas with the
operation of the Courts in a purely judicial domain." It does not follow from that conclusion that the actions of
the executive can never be reviewed by the Courts even in respect of matters which are on their face apparently
within the exclusive domain of the Government. It is beyond dispute and well settled in many cases that one of
the functions of the Courts is to uphold the Constitution. That includes restraining the Government from freeing
themselves or purporting to free themselves from the restraints of the Constitution.
This issue was discussed at some length in this Court in the case of Boland v. An Taoiseach [1974] I.R.
338. The subject of that litigation was what became known as the "Sunningdale Agreement", and in particular
clause 5 thereof. It was held by this Court that it was not an agreement or treaty but a communiqué containing
declarations and assertions of policy, and therefore was not restrainable. In the course of his judgment in that
case FitzGerald C.J. at p. 362 stated:—
"Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or
interfere with the exercise by the Government of its executive functions, unless the circumstances are such
as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the
Constitution."
O'Keeffe P. in the course of his judgment at p. 363 stated that it was clearly not within the competence of
the Government to agree to depart from the terms of the Constitution. He found that the document in question
was not such an agreement but simply a statement of policy. Budd J. stated, and in my view correctly so, that
the Courts could clearly not state that any particular policy ought not to be pursued and was of opinion that
nothing more than a declaration of policy had been made and that there was not any agreement between the
parties. It is to be inferred from his judgment that if an agreement were in existence different considerations
would apply. Griffin J. in his judgment was also of opinion that the stage had not been reached in that case
where the Courts could intervene as no formal agreement had been reached between the parties, and
furthermore that if the contemplated agreement were reached it would have led to legislation which itself could
be the subject of a constitutional challenge in the Courts. Pringle J. agreed that the appeal in that case should be
dismissed for the reasons stated in the judgments, and that the Courts had no power to interfere with the
exercise

[1987] Crotty v. An Taoiseach 780


1 I.R. Walsh J. S.C.
by the Government of its executive functions in the circumstances relied upon by the plaintiff. That, as I
understand it, meant that Pringle J. was in agreement with his colleagues that nothing beyond the
pronouncemment of a policy had taken place and that therefore the Courts could not intervene at that stage.
What is at issue in the present case is not simply a declaration of policy but an actual treaty. As it will
obviously involve a charge upon the public funds the requirement of the Constitution in Article 29, s. 5, sub-s.
2, that it should be approved by Dáil Éireann , has been complied with. The State is not yet bound by this
Treaty even though it has been laid before Dáil Éireann because its binding effect depends upon ratification
in accordance with Irish "constitutional requirements". The question therefore is whether the State in attempting
to ratify this Treaty is endeavouring to act free from the restraints of the Constitution.
The object of this Treaty, so far as Ireland is concerned, is to bind this State in its relations with the other
Member States of the European Communities. Adherence to the Treaty, or indeed the Treaty itself, is not in any
sense an obligation arising from or necessitated by membership of the European Communities. I do not accept
the submission made on behalf of the defendants that unless and until the terms of the Treaty are translated into
domestic legislation the Court has no competence in the matter. In international law the State in entering into a
treaty must act in good faith. That is why the provision in the Treaty itself for ratification in accordance with the
constitutional requirements of this State is so important. If some part or all of the Treaty were subsequently
translated into domestic legislation and found to be unconstitutional it would avail the State nothing in its
obligations to its fellow members. It would still be bound by the Treaty. Therefore if the ratification of this
Treaty under the Irish Constitution requires a referendum to amend the Constitution to give effect to it, the fact
that the State did not hold a referendum would not prevent the State from being bound in international law by
the Treaty. If a referendum were to be held or had been held and the Treaty were rejected then the State would
not be in breach of its international obligations because it would not have ratified the Treaty. It is not for the
other states to the Treaty to satisfy themselves that the Government of Ireland observed its own constitutional
requirements. This is solely a matter for the Government of Ireland and if it fails to take the necessary steps, the
State cannot afterwards be heard to plead that it is not bound by the Treaty.
The Treaty does not purport to commit the State to agreeing to the establishment of a European Union of
which Ireland would be a part. That is manifestly something to which the Government could not commit the
State. What the Treaty does is to commit the State to pursuing a policy which has, inter alia, as one of its
objectives the transformation of the

[1987] Crotty v. An Taoiseach 781


1 I.R. Walsh J. S.C.
relations of Ireland with the other Member States of the European Communities into a European Union. If this
were simply a unilateral statement of policy on the part of the Government or part of a multilateral declaration
of policy to the like end it could not be called into question in this Court. As was pointed out by Budd J. in
Boland v. An Taoiseach [1974] I.R. 338 at p. 366 it would, as such, be outside "the purview of the Courts in that
it makes the Government responsible to the Dáil which can support or oppose those policies and review
them." The present Treaty provisions go much further than that and, notwithstanding that, they have been
approved by Dáil Éireann . As was pointed out in the decision of the Court in the first part of this case the
essential nature of sovereignty is the right to say yes or to say no. In the present Treaty provisions that right is to
be materially qualified.
It commits the State, and therefore all future Governments and the Oireachtas, to the other Member States
to do the following things:—
1. To endeavour to formulate and to implement a European foreign policy.
2. To undertake to inform or consult the other Member States on any foreign policy matters of general
interest (not just of common interest) so as to ensure that the combined influence of the States is
exercised as effectively as possible through co-ordination, the convergence of their positions and the
implementation of joint action.
3. In adopting its position and in its national measures the State shall take full account of the position of
the other Member States and shall give due consideration to the desirability of adopting and
implementing common European positions.
4. The State will ensure that with its fellow Member States common principles and objectives are
gradually developed and defined.
5. The State shall endeavour to avoid any action or position which impairs the effectiveness of the
Community States as a cohesive force in international relations or within international organisations.
6. The State shall so far as possible refrain from impeding the formation of a consensus and the joint action
which this could produce.
7. The State shall be ready to co-ordinate its position with the position of the other Member States more
closely on the political and economic aspects of security.
8. The State shall maintain the technological and industrial conditions necessary for security of the
Member States and it shall work to that end at national level and, where appropriate, within the
framework of the competent institutions and bodies.
9. In international institutions and at international conferences which the State attends it shall endeavour to
adopt a common position with the other Member States on subjects covered by Title III.
10. In international institutions and at international conferences in which

[1987] Crotty v. An Taoiseach 782


1 I.R. Walsh J. S.C.
not all of the Member States participate the State, if it is one of those participating, shall take full account of the
positions agreed in European Political Cooperation.
One other matter expressed in somewhat ambiguous terms at Article 6 (c) in Title II is as follows:—
"Nothing in this Title shall impede closer cooperation in the field of security between certain of the High
Contracting Parties within the framework of the Western European Union or the Atlantic Alliance."
One interpretation of that is that the Member States who are members of the Western European Union or
the Atlantic Alliance (Ireland is not a member of either) can develop their own co-operation in those fields
without being impeded by anything in Title III of this Treaty. However, it can also amount to an undertaking on
the part of this State that in the exercise of whatever powers it may have under Title III it shall do nothing to
impede such co-operation in the field of security in the framework of the Western European Union or the
Atlantic Alliance on the part of those Member States which belong to those institutions.
All of these matters impinge upon the freedom of action of the State not only in certain areas of foreign
policy but even within international organisations such as the United Nations or the Council of Europe. That
latter effect of the Treaty could amount to the establishment of combinations within these organisations. In
touching upon the maintenance of the technological and industrial conditions necessary for security the Treaty
impinges upon the State's economic, industrial and defence policies. The obligation on the High Contracting
Parties after five years to examine whether any revision of Title III is required does not give the Treaty a
temporary character.
I mentioned earlier in this judgment that the Government is the sole organ of the State in the field of
international relations. This power is conferred upon it by the Constitution which provides in Article 29, s. 4
that this power shall be exercised by or on the authority of the Government. In this area the Government must
act as a collective authority and shall be collectively responsible to Dáil Éireann and ultimately to the
people. In my view it would be quite incompatible with the freedom of action conferred on the Government by
the Constitution for the Government to qualify that freedom or to inhibit it in any manner by formal agreement
with other States as to qualify it. This view is, in my opinion, corroborated by the provisions of Article 29, s. 4,
sub-s. 2 of the Constitution which provides:—
"For the purpose of the exercise of any executive function of the State in or in connection with its external
relations, the Government may to such extent and subject to such conditions, if any, as may be determined
by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like

[1987] Crotty v. An Taoiseach 783


1 I.R. Walsh J. S.C.
purpose by the members of any group or league of nations with which the State is or becomes
associated for the purpose of international co-operation in matters of common concern."
The history of this particular provision is too well known to require elaboration but the wording is such
that for the particular purpose of that provision the European Economic Community is in my view such a group
or league of nations with which the State is associated for the purpose of international co-operation in matters of
common concern. However the limitations are very clear. This provision relates solely to the exercise of the
executive functions of this State in its external relations and is subject to such conditions, if any, as may be
determined by law. Furthermore it simply provides for the adoption of any organ or instrument or method of
procedure for the exercise of the executive functions of the State. It does not require prior consultation with any
other State as to the policy itself. It also provides that there must be enabling legislation. The framers of the
Constitution, and the people in enacting it, clearly foresaw the possibility of being associated with groups of
nations for the purpose of international co-operation in matters of common concern and they provided for the
possibility of the adoption of a common organ or instrument. Equally clearly they refrained from granting to the
Government the power to bind the State by agreement with such groups of nations as to the manner or under
what conditions that executive function of the State would be exercised.
In enacting the Constitution the people conferred full freedom of action upon the Government to decide
matters of foreign policy and to act as it thinks fit on any particular issue so far as policy is concerned and as, in
the opinion of the Government, the occasion requires. In my view, this freedom does not carry with it the power
to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a
particular way or to refrain from exercising it save by particular procedures, and so to bind the State in its
freedom of action in its foreign policy. The freedom to formulate foreign policy is just as much a mark of
sovereignty as the freedom to form economic policy and the freedom to legislate. The latter two have now been
curtailed by the consent of the people to the amendment of the Constitution which is contained in Article 29, s.
4, sub-s. 3 of the Constitution. If it is now desired to qualify, curtail or inhibit the existing sovereign power to
formulate and to pursue such foreign policies as from time to time to the Government may seem proper, it is not
within the power of the Government itself to do so. The foreign policy organ of the State cannot, within the
terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions
upon freedom of action. To acquire the power to do so would, in my opinion, require a recourse to the people
"whose right it is" in the words of Article 6 ". . . in final appeal, to decide all questions of national policy,
according to the requirements of the common good." In the last analysis it is the people

[1987] Crotty v. An Taoiseach 784


1 I.R. Walsh J.; Henchy J. S.C.
themselves who are the guardians of the Constitution. In my view, the assent of the people is a necessary
prerequisite to the ratification of so much of the Single European Act as consists of title III thereof. On these
grounds I would allow this appeal.

Henchy J.
The Single European Act ("the SEA") is something of a misnomer, for it is a treaty rather than an
instrument with the legislative connotations usually attaching to an Act. As a treaty it has a dual purpose: (1) to
amend and supplement the Treaties on which the European Communities are founded; and (2) to put on a
formal basis co-operation between the Member States in the field of foreign policy. It is with the latter
objective, which is dealt with in Title III of the SEA, that we are concerned in this part of the plaintiff's appeal.
Title III (which is headed "Provisions on European cooperation in the sphere of foreign policy") deals with
matters which are outside the scope of the existing treaties. This is evidenced by the two opening paragraphs of
the preamble to the SEA:—
"MOVED by the will to continue the work undertaken on the basis of the Treaties establishing the
European Communities and to transform relations as a whole among their States into a European Union, in
accordance with the Solemn Declaration of Stuttgart of 19 June 1983,
RESOLVED to implement this European Union on the basis, firstly, of the Communities operating in
accordance with their own rules and, secondly, of European Cooperation among the Signatory States in the
sphere of foreign policy and to invest this union with the necessary means of action."
It is clear, therefore, that, so far as Title III is concerned, Ireland's constitutional authority for ratifying the
SEA is not to be found in Article 29, s. 4, sub-s. 3 of the Constitution, which is the constitutional amendment
which allowed Ireland to become a member of the European Communities. One must look elsewhere in the
Constitution to see if there are express or implied provisions which would make Ireland's ratification of Title III
consistent with the Constitution.
It is first necessary to make clear the scope and objective of Title III, all of which is contained in Article 30
of the SEA. Article 30, s. 1 provides that the Member States of the European Communities "shall endeavour to
formulate and implement a European foreign policy." Thus, unlike the main part of the SEA, Article 30 is not
intended to be an amendment of the existing Treaties but sets the Member States on a course leading to an
eventual European Union in the sphere of foreign policy. Pending the attainment of that objective, which is
outside the stated aims of the existing Treaties, the Member States become bound to formulate and conduct their

[1987] Crotty v. An Taoiseach 785


1 I.R. Henchy J. S.C.
foreign policy according to the terms stated in Article 30. What had been no more than an objective declared by
the Stuttgart Declaration of 1983 is now to become a matter of solemn treaty.
The essence of this fundamental transformation in the relations between the Member States of the
European Communities is that they are no longer to have separate foreign policies but are, as far as possible, to
merge their national foreign policies in a European (i.e. Community) foreign policy and to work together in the
manner indicated, so as to implement what is called European Political Cooperation, with a view to achieving
eventual European union.
The principal courses of conduct to which the High Contracting Parties bind themselves are set out in s. 2
of Article 30:—
"(a) The High Contracting Parties undertake to inform and consult each other on any foreign policy
matters of general interest so as to ensure that their combined influence is exercised as effectively as
possible through coordination, the convergence of their positions and the implementation of joint action.
(b) Consultations shall take place before the High Contracting Parties decide on their final position.
(c) In adopting its positions and in its national measures each High Contracting Party shall take full
account of the positions of the other partners and shall give due consideration to the desirability of adopting
and implementing common European positions.
In order to increase their capacity for joint action in the foreign policy field, the High Contracting Parties
shall ensure that common principles and objectives are gradually developed and defined.
The determination of common positions shall constitute a point of reference for the policies of the High
Contracting Parties.
(d) The High Contracting Parties shall endeavour to avoid any action or position which impairs their
effectiveness as a cohesive force in international relations or within international organizations."
Without going further into Article 30, it is clear from those provisions that once the Member States ratify
this Treaty each state's foreign policy will move from a national to a European or Community level. Apart from
becoming bound to endeavour jointly to formulate and implement a European foreign policy, each Member
State will become specifically bound to inform and consult its fellow-members, to refrain from deciding on a
final position as to an issue of foreign policy without prior consultations, to take full account of the positions of
the other partners in adopting its positions and in its national measures, to ensure that common principles and
objectives are gradually developed and defined, and to recognise that the determination of common positions
shall constitute a point of reference.

[1987] Crotty v. An Taoiseach 786


1 I.R. Henchy J. S.C.

Those and other commitments expressed in Article 30 make manifest that, although the approach to the
ultimate aim of European Union is to be reached by a pathway of gradualism, each Member State will
immediately cede a portion of its sovereignty and freedom of action in matters of foreign policy. National
objectives and ideological positions must defer to the aims and decisions of an institution known as European
Political Cooperation, which is to work in tandem with the European Communities. A purely national approach
to foreign policy is incompatible with accession to this Treaty. The methods of co-operation between the
Member States, which hitherto have been informal, aspirational or, at most, declaratory (as under the Stuttgart
Declaration), now pass into a realm of solemnly covenanted commitment to the conduct of foreign policy in a
way that will lead to European political union, at least in the sphere of foreign policy. In that respect, Title III of
the SEA is the threshold leading from what has hitherto been essentially an economic Community to what will
now also be a political Community.
In the case of Ireland, it is proposed that this transformation be effected not by any amendment of the
Constitution, nor by any statutory change in the domestic law, but by simply depositing an instrument of
ratification of the SEA. The fundamental and far-reaching changes in the conduct of the State's foreign policy to
which I have referred would thus be effected by the Government, without reference to the people and without an
Act of parliament. Counsel for the Government has sought to justify this approach by submitting that, because
Article 29, s. 4, sub-s. 1 of the Constitution has committed the conduct of foreign policy to the Government, the
Courts are not entitled to control the Government in the way it decides to conduct foreign policy. It is therefore
contended that the plaintiff's claim is ill-founded.
I am unable to accept the submission that the powers of Government in the conduct of foreign policy are
not amenable to control by the Courts. It is true that Article 29, s. 4, sub-s. 1 of the Constitution provides that
"the executive power of the State in or in connection with its external relations shall in accordance with Article
28 of this Constitution be exercised by or on the authority of the Government." However, when one turns to
Article 28 one finds that s. 2 of that Article clarifies the position by declaring that "the executive power of the
State shall, subject to the provisions of this Constitution,be exercised by or on the authority of the
Government." (Emphasis added). It follows, therefore, that in the conduct of the State's external relations, as in
the exercise of the executive power in other respects, the Government is not immune from judicial control if it
acts in a manner or for a purpose which is inconsistent with the Constitution. Such control is necessary to give
effect to the limiting words "subject to the provisions of this Constitution."
In testing the constitutional validity of the proposed ratification of the

[1987] Crotty v. An Taoiseach 787


1 I.R. Henchy J. S.C.
SEA (insofar as it contains Title III) it is important to note that the Constitution at the very outset declares as
follows in Article 1:—
"The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right . . . to determine its
relations with other nations . . . in accordance with its own genius and traditions."
It appears to me that this affirmation means that the State's right to conduct its external relations is part of
what is inalienable and indefeasible in what is described in Article 5 as "a sovereign, independent, democratic
State." It follows, in my view, that any attempt by the Government to make a binding commitment to alienate in
whole or in part to other states the conduct of foreign relations would be inconsistent with the Government's
duty to conduct those relations in accordance with the Constitution.
The ultimate source and limits of the Government's powers in the conduct of foreign relations are to be
found in Article 6, s. 1 of the Constitution:—
"All powers of government, legislative, executive and judicial, derive, under God, from the people, whose
right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy,
according to the requirements of the common good."
It follows that the common good of the Irish people is the ultimate standard by which the constitutional
validity of the conduct of foreign affairs by the Government is to be judged. In this and in a number of other
respects throughout the Constitution the central position of the common good of the Irish people is stressed as
one of the most fundamental characteristics of Ireland as a sovereign, independent, democratic state.
A perusal of Title III of the SEA satisfies me that each ratifying Member State will be bound to surrender
part of its sovereignty in the conduct of foreign relations. That is to happen as part of a process designed to
formulate and implement a European foreign policy. The freedom of action of each state is to be curtailed in the
interests of the common good of the Member States as a whole. Thus, for example, in regard to Ireland, while
under the Constitution the point of reference for the determination of a final position on any issue of foreign
relations is the common good of the Irish people, under Title III the point of reference is required to be the
common position determined by Member States. It is to be said that such a common position cannot be reached
without Ireland's consent, but Title III is not framed in a manner which would allow Ireland to refuse to reach a
common position on the ground of its obligations under the Irish Constitution. There is no provision in the
Treaty for a derogation by Ireland where its constitutional obligations so require. On the contrary, Title III
expressly provides:—
"In adopting its positions and in its national measures [which presumably would include Acts of the
Oireachtas] each High

[1987] Crotty v. An Taoiseach 788


1 I.R. Henchy J. S.C.
Contracting Party shall take full account of the positions of the other partners and shall give due
consideration to the desirability of adopting and implementing common European positions."
Thus, if the other Member States were to take up a common position on an issue of external relations,
Ireland, in adopting its own position and in its national measures, would be bound by Title III to "take full
account" of the common position of the other Member States. To be bound by a solemn international treaty to
act thus is, in my opinion, inconsistent with the obligation of the Government to conduct its foreign relations
according to the common good of the Irish people. In this and in other respects Title III amounts to a diminution
of Ireland's sovereignty which is declared in unqualified terms in the Irish Constitution.
It is urged on behalf of the Government that the changes in existing inter-state relations effected by Title III
are slight, that it does little more than formalise existing practices and procedures by converting them into
binding obligations. This, I fear, is to underestimate the true nature in international law of a treaty as distinct
from a mere practice or procedure, and to misinterpret the commitments for the future involved in Title III. As a
treaty, Title III is not designed in static terms. It not alone envisages changes in inter-state relations, but also
postulates and requires those changes. And the purpose of those changes is to erode national independence in
the conduct of external relations in the interests of European political cohesion in foreign relations. As I have
pointed out, the treaty marks the transformation of the European Communities from an organisation which has
so far been essentially economic to one that is to be political also. It goes beyond existing arrangements and
practices, in that it establishes within the framework of the Communities new institutions and offices (such as
European Political Cooperation, the Political Director and the Political Committee) and charts a route of co-
ordination, by means such as working parties, a secretariat and regular meetings, so as to give impetus to the
drive for European unity.
All this means that if Ireland were to ratify the Treaty it would be bound in international law to engage
actively in a programme which would trench progressively on Ireland's independence and sovereignty in the
conduct of foreign relations. Ireland would therefore become bound to act in a way that would be inconsistent
with the Constitution. The Government's constitutional mandate requires it to act in accordance with the
Constitution. In proposing to ratify this treaty it is in effect seeking to evade that obligation and to substitute for
it an obligation, or a series of obligations, in international law which cannot be reconciled with the
constitutional obligations.
There is, of course, nothing in the Constitution to prevent the Government, or any person or group or
institution, from advocating or campaigning for or otherwise working for a change in the Constitution. Likewise
there

[1987] Crotty v. An Taoiseach 789


1 I.R. Henchy J.; Griffin J. S.C.
does not appear to be any constitutional bar to a non-binding arrangement by the State to consult with other
states in the conduct of its foreign policy. It is quite a different matter when, as here, it is proposed that the State
be bound by an international treaty which requires the State to act in the sphere of foreign relations in a manner
which would be inconsistent with constitutional requirements. What would be an imperative under international
law would be proscribed under the Constitution. In such circumstances it is the Constitution that must prevail.
For the foregoing reasons I am of the opinion that, without the appropriate constitutional amendment, the
ratification of the SEA (insofar as it contains Title III) would be impermissible under the Constitution. I would
declare accordingly.

Griffin J.
I agree with the judgment delivered by the Chief Justice. I should like however to add some observations
of my own.
Title III, although included in the Single European Act (SEA), and set out in Article 30 in that Act, is
effectively a separate treaty between the twelve countries who are the Member States of the European
Communities. They are referred to throughout that Title as the High Contracting Parties ("the parties"), the
designation usually applied to states in international treaties. The long term aim and objective of Title III is the
formation of a European union. It is not in issue that if the State were to join such a union, a constitutional
amendment would be necessary, but a European union is neither sought to be created nor is it created by the
Treaty.
There has been European Political Cooperation (EPC) since October, 1970, (prior to the entry of the State
to the Communities), when the first report of the Foreign Ministers of the Members States was adopted at
Luxembourg. In that report the governments undertook to co-operate in the field of foreign policy by consulting
regularly, harmonising views and opinions, concerting attitudes, and, where possible, undertaking joint action.
There were three subsequent reports in 1973, 1981 and 1983, and Article I of the SEA provided that political co-
operation should be governed by Title III and that the provisions of that Title should confirm and supplement
the procedures agreed in the four reports and the practicesgradually established among the Member States. The
purpose of Title III — which is entitled "Treaty Provisions on European Cooperation in the sphere of foreign
policy" — appears to be to formalise the procedures and practices of the EPC and to do so by means of a
treaty. By virtue of Article 32 of the SEA, nothing in Title III is to affect the Treaties establishing the
Communities, so it does not purport to amend the Treaties in any way.
Details or summaries of the provisions of Article 30 have been included in the judgments already delivered
and I do not propose to repeat them, although I will refer to some of those provisions. The language used in

[1987] Crotty v. An Taoiseach 790


1 I.R. Griffin J. S.C.
Article 30 would appear to have been chosen with extreme care to ensure that the obligations of the parties
under the treaty would permit the utmost freedom of action to each of the parties in the sphere of foreign policy,
and is in stark contrast to that used in Title II. For example, the parties are to endeavour to formulate and
implement a foreign policy; to inform andconsult each other on foreign policy matters; consultations are to take
place before deciding on their final position; they are to endeavour to avoid any action or position which
impairs their effectiveness as a cohesive force; they are as far as possible to refrain from impeding a consensus;
in international institutions and at international conferences they are to endeavour to adoptcommon positions on
the subjects covered by the Title, and where not all the parties participate in such institutions or conferences,
they are to take full account of positions agreed in EPC. On security, the parties are expressed to be ready to co-
ordinate their positions more closely on the political and economic aspects of security — military and defence
aspects of security are not included and in my view should accordingly be considered to be excluded. Under
clause 6 (c) nothing in Title III is to impede closer co-operation in the field of security between certain of the
parties within the framework of the Western European Union or the Atlantic Alliance — this provision would
appear clearly to have been inserted to ensure that the declared stand on neutrality and military alliances taken
by the State is fully respected, as the State is the only party which is not a member of either alliance, although
four other parties are also not members of the Western European Union.
Having regard to the terms in which the provisions of Title III are expressed, I am in complete agreement
with the Chief Justice in concluding that those provisions do not impose any obligations to cede any sovereignty
or national interest in the field of foreign policy, nor do they in any way allow a decision of the State on any
issue of foreign policy to be overridden or vetoed. The Treaty, being an international agreement to which the
State is a party, has been laid before and been approved by Dáil Éireann in compliance with the provisions
of Article 29, s. 5, sub-ss. 1 and 2 of the Constitution. The Government is therefore, in my opinion, as the organ
of government by which the executive power of the State is to be exercised pursuant to Article 29, s. 4 of the
Constitution, entitled to ratify the Treaty without the necessity of an amendment of the Constitution.
However, there remains, as the Chief Justice pointed out in his judgment, an issue of a fundamental nature,
i.e., as to whether the Court is entitled, at the instance of the plaintiff, to prevent the Government from ratifying
the Treaty. In presenting the argument on behalf of the plaintiff, his counsel Mr. Browne, in relation to Title III,
based his right to seek the intervention of this Court to prevent ratification of the Treaty on an apprehension on
the part of the plaintiff that Title III would affect the independence of the State in relation to foreign policy, even
though, as he

[1987] Crotty v. An Taoiseach 791


1 I.R. Griffin J. S.C.
put it, the Treaty had not become part of the domestic law of the State under Article 29, section 6. This brings
into question the power of the Court to intervene in the acts of the Executive and inevitably to consideration of
the separation of powers provided for in the Constitution.
Article 6 of the Constitution reads as follows:—
"1. All powers of government, legislative, executive and judicial, derive, under God, from the people,
whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national
policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State
established by this Constitution."
The effect of this Article has been considered and interpreted in a number of cases, which include Buckley
and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and Boland v. An Taoiseach [1974] I.R. 338. In
Buckley's Case O'Byrne J. delivered the judgment of the Court and said at p. 81 that the object of Article 6
was:—
". . . to recognise and ordain that, in this State, all powers of government should be exercised in accordance
with the well-recognised principle of the distribution of powers between the legislative, executive and
judicial organs of the State and to require that these powers should not be exercised otherwise. The
subsequent articles are designed to carry into effect this distribution of powers."
Under Article 15, s. 2, sub-s. 1 the Oireachtas is the organ of State in which the sole and exclusive power
of making laws is vested. Article 15, s. 4, sub-s. 1 provides that the Oireachtas shall not enact any law which is
in any respect repugnant to the Constitution or to any provision thereof; and sub-s. 2 of that section provides
that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any
provision thereof shall, but to the extent only of such repugnancy, be invalid. Under Article 34, s. 1 the judicial
power of government can be exercised only by judges duly appointed in the manner provided by the
Constitution in courts established by law under the Constitution. The High Court and this Court on appeal from
the High Court are by Article 34, s. 3, sub-s. 2 expressly given jurisdiction to examine the validity of any law
enacted under Article 15 which may be challenged as being repugnant to the Constitution or to any provision
thereof. If the challenged Act or any provision thereof is found to be invalid by the High Court or by this Court,
the Court so finding is bound to declare that the impugned Act or provision thereof is invalid. Those Articles
provide the only power given to the Courts by the Constitution to declare invalid legislation enacted by the
Oireachtas.
In the case of a Bill referred to this Court by the President, pursuant to Article 26 of the Constitution, for a
decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are

[1987] Crotty v. An Taoiseach 792


1 I.R. Griffin J. S.C.
repugnant to the Constitution or to any provision thereof, this Court is by Article 26, s. 2, sub-s. 1 given express
power, and has the duty, to consider such question and pronounce its decision on such question. This is the only
power given to any Court to consider a Bill which has not yet become law.
In my opinion, the Courts have no power, either express or implied, to interfere with the Oireachtas in the
course of the passage of a Bill, and all efforts seeking to prevent by Court interference the introduction or
passage of a Bill have failed, the most recent example being the unsuccessful attempt by the plaintiff in this case
to prevent the introduction of the European Communities (Amendment) Bill, 1986.
Article 28, s. 2 provides that the executive power of the State shall, subject to the provisions of the
Constitution, be exercised by or on the authority of the Government. Under s. 4, sub-s. 1 of Article 28 the
Government shall be responsible to Dáil Éireann . Article 29, s. 4, sub-s. 1 provides that the executive
power of the State in or in connection with its external relations shall in accordance with Article 28 of the
Constitution be exercised by or on the authority of the Government.
No express power is given by the Constitution to the Courts to interfere in any way with the Government
in exercising the executive power of the State. However, the Government, and all of its members and the
administration in respect of which the members are responsible, are subject to the intervention of the Courts to
ensure that in their actions they keep within the bounds of lawful authority. Where such actions infringe or
threaten to infringe the rights of individual citizens or persons, the Courts not only have the right to interfere
with the executive power but have the constitutional obligation and duty to do so. But that right to interfere
arises only where the citizen or person who seeks the assistance of the Courts can show that there has been an
actual or threatened invasion or infringement of such rights.
As stated earlier, the executive power of the State in or in connection with its external relations shall, in
accordance with Article 28, be exercised by or on behalf of the Government. Under Article 29, s. 5, sub-s. 1
every international agreement to which the State becomes a party shall be laid before Dáil Éireann , and
under sub-s. 2 of that section the State shall not be bound by any international agreement involving a charge
upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann , Dáil
Éireann being the body to which the Government is expressly answerable under Article 28, s. 4, sub-s. 1.
The constitutional scheme in respect of international agreements would appear therefore to be that the
Government, exercising the executive power, may enter into international agreements, but such agreements
must be laid before Dáil Éireann , and if the agreement involves a charge on public funds, the State is not to
be bound by the agreement unless the terms of the agreement have been approved of by Dáil Éireann .

[1987] Crotty v. An Taoiseach 793


1 I.R. Griffin J. S.C.

The power of the Court to interfere with the exercise by the Government of the executive power of the
State was considered by this Court in Boland v. An Taoiseach [1974] I.R. 338. FitzGerald C.J., having referred
to the statement of O'Byrne J. in Buckley & Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and to the
separation of the executive, legislative and judicial powers of government in Article 6 of the Constitution, said
at p. 362:—
"Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or
interfere with the exercise by the Government of its executive functions, unless the circumstances are such
as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the
Constitution."
And in the same case, I said at p. 370:—
"Counsel for the defendants argued that in no circumstances may the Courts interfere with the Government
in the exercise of its executive functions. For the purpose of this action it is not necessary to determine this
question in the form in which the argument was made, as the defendants need only show that the Courts
cannot and should not intervene having regard to the circumstances of the present case. In the event of the
Government acting in a manner which is in contravention of some provisions of the Constitution, in my
view it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called
upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in
proceedings brought before the Courts."
I see no reason to resile from what is stated in that passage, which was said in the context of an unqualified
submission by counsel for the defendants that it is no part of the function of the judicial organ of the State to
interfere with the Government in the exercise by it of the executive power of the State. In that case, in
discussions arising out of that submission, members of the Court put to counsel for the defendants the example
of a declaration of war by the Government without the assent of Dáil Éireann , in clear breach of the
provisions of Article 28, s. 3 of the Constitution, as being a circumstance in which the Court would be bound to
intervene to protect a citizen against what would undoubtedly be an invasion of his rights and a justiciable
matter. I fully endorse the opinion of the Chief Justice that there is nothing in the provisions of Articles 28 and
29 of the Constitution from which it would be possible to imply any general right in the Courts to interfere with
the exercise of the executive power in the sphere or area of external relations, but that in any instance where the
exercise of that power constitutes an actual or threatened invasion or breach of the constitutional

[1987] Crotty v. An Taoiseach 794


1 I.R. Griffin J.; Hederman J. S.C.
rights of an individual the Courts must have both the right and the duty to intervene to protect those rights. The
decision in Boland v. An Taoiseach [1974] I.R. 338 is in my opinion consistent with that view.
In my judgment, the plaintiff has failed to establish any such invasion or breach of any of his rights
resulting from the State being a party to the Treaty the provisions of which are set out in Title III.
I would accordingly dismiss this appeal.

Hederman J.
I agree with the judgments of Walsh J. and Henchy J. for the reasons given by them. There is little I can
usefully add.
It appears to me that the essential point at issue is whether the State can by any act on the part of its
various organs of government enter into binding agreements with other states, or groups of states, to
subordinate, or to submit, the exercise of the powers bestowed by the Constitution to the advice or interests of
other states, as distinct from electing from time to time to pursue its own particular policies in union or in
concert with other states in their pursuit of their own similar or even identical policies.
The State's organs cannot contract to exercise in a particular procedure their policy-making roles or in any
way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers — not
the disposers of them. For the reasons already stated I would allow the appeal.
[Editor's Note: On 25th May, 1987, in a referendum to amend the Constitution by inserting a provision
approving the accession of Ireland to the Single European Act, the number of votes cast in favour of the
amendment was 755,423 and the number of votes against 324,977, the amendment being thereby carried.]
Solicitors for the plaintiff: Moylan Whitaker.
Solicitor for the defendants: Chief State Solicitor.

Éanna Mulloy, B.L.

[1987] I.R. 713